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Surface Transportation Project Delivery Program Application Requirements

American Government Special Collections Reference Desk

American Government

Surface Transportation Project Delivery Program Application Requirements

Gregory G. Nadeau
Federal Highway Administration
Therese McMillan
Federal Transit Administration
Joseph C. Szabo
Federal Railroad Administration
September 16, 2014


[Federal Register Volume 79, Number 179 (Tuesday, September 16, 2014)]
[Rules and Regulations]
[Pages 55381-55403]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-22080]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Part 773

Federal Railroad Administration

49 CFR Part 264

Federal Transit Administration

49 CFR Part 622

[Docket No. FHWA-2013-0022]
FHWA RIN 2125-AF50; FRA RIN 2130-AC45; FTA RIN 2132-AB15


Surface Transportation Project Delivery Program Application 
Requirements

AGENCY: Federal Highway Administration (FHWA), Federal Railroad 
Administration (FRA), Federal Transit Administration (FTA), DOT.

ACTION: Final rule.

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SUMMARY: This final rule amends the application requirements for the 
Surface Transportation Project Delivery Program (Program). This 
rulemaking is prompted by enactment of the Moving Ahead for Progress in 
the 21st Century Act (MAP-21), which converted the Surface 
Transportation Project Delivery Pilot Program into a permanent program, 
allowed any State to apply for the

[[Page 55382]]

Program, created a renewal process for Program participation, and 
expanded the scope of the Secretary's responsibilities that may be 
assigned and assumed under the Program to environmental review 
responsibilities for railroad, public transportation, and multimodal 
projects, in addition to highway projects.

DATES: Effective on October 16, 2014.

FOR FURTHER INFORMATION CONTACT: For FHWA: Owen Lindauer, Office of 
Project Delivery and Environmental Review, (202) 366-2655, or Jomar 
Maldonado, Office of the Chief Counsel, (202) 366-1373, Federal Highway 
Administration, 1200 New Jersey Ave. SE., Washington, DC 20590-0001. 
For FRA: David Valenstein, Office of Railroad Policy and Development, 
(202) 493-6368, or Zeb Schorr, Office of Chief Counsel, (202) 493-6072. 
For FTA: Adam Stephenson, Office of Planning and Environment, (202) 
366-5183, or Nancy Ellen Zusman, Office of Chief Counsel, (312) 353-
2577. Office hours are from 8:00 a.m. to 4:30 p.m. e.t., Monday through 
Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Background

    Section 6005 of the Safe, Accountable, Flexible, Efficient 
Transportation Equity Act: A Legacy for Users (SAFETEA-LU), 109 Public 
Law 59, 119 Stat. 1144, 1868-1872, codified at section 327 of title 23 
United States Code (U.S.C.), established a pilot program allowing the 
Secretary of Transportation (Secretary) to assign and for certain 
States to assume the Federal responsibilities for the review of highway 
projects under the National Environmental Policy Act of 1969 (NEPA) and 
responsibilities for environmental review, consultation, or other 
actions required under any Federal environmental law pertaining to the 
review. The pilot program was limited to five States and was set to 
expire on September 30, 2012. Pursuant to 23 U.S.C. 327(b)(2), FHWA 
promulgated regulations in part 773 of title 23 of the Code of Federal 
Regulations (CFR), which set forth the information that States must 
submit as part of their applications to participate in the pilot 
program (72 FR 6470, Feb. 12, 2007).
    On July 6, 2012, President Obama signed into law MAP-21, Public Law 
112-141, 126 Stat. 405, which contains new requirements that the 
Secretary must meet. Section 1313 of MAP-21 amended 23 U.S.C. 327, by: 
(1) Converting the pilot program into a permanent program (Program); 
(2) removing the five-State limit; (3) expanding the scope of 
assignment and assumption for the Secretary's responsibilities to 
include railroad, public transportation, and multimodal projects; and 
(4) allowing a renewal option for Program participation. Section 1313 
also amended 23 U.S.C. 327(b)(2) by requiring the Secretary to amend--
within 270 days from the date of MAP-21's enactment (October 1, 2012)--
the regulations concerning the information required in a State's 
application to participate in the Program. This final rule amends these 
regulations consistent with the changes in MAP-21.

Notice of Proposed Rulemaking

    On August 30, 2013 (78 FR 53712), FHWA, FRA, and FTA (referred 
throughout this document as the Agencies) published a Notice of 
Proposed Rulemaking (NPRM) in which the Agencies proposed amendments to 
23 CFR part 773 to account for the changes in the Program made by 
section 1313 of MAP-21. The Agencies' proposed amendments were limited 
to the application requirements and termination.
    The public comment period closed on October 29, 2013. The Agencies 
considered all comments received when developing this final rule.

Summary of Comments and Responses

    The Agencies received comments from a total of 17 entities, which 
included 7 State departments of transportation (State DOT) (Alaska DOT, 
California DOT, Florida DOT, Georgia DOT, Texas DOT, Virginia DOT, and 
Washington State DOT), 4 professional associations (the American 
Association of State Highway and Transportation Officials, the American 
Road and Transportation Builders Association, the Association of 
American Railroads, and the American Public Transportation 
Association), 3 public interest groups (the Natural Resource Defense 
Council, the Southern Environmental Law Center, and Transportation for 
America), 2 transit agencies (the Los Angeles County Metropolitan 
Transit Authority and the Metropolitan Transit Authority of New York), 
and 1 metropolitan planning organization (the San Diego Association of 
Governments). These entities provided over 100 comments that supported 
the proposed rule, proposed modifications to the proposed rule, or 
requested further clarifications. The submitted comments have been 
organized by theme or topic.

General

    Two State DOTs and one professional association indicated that the 
proposed rule was overly prescriptive and could limit States' 
flexibility. The commenters suggested re-writing the rule to streamline 
processes and reduce cost by removing language that is not specifically 
required for compliance with the statute. One State DOT stated that 
requiring States to identify each project for which a Draft 
Environmental Impact Statement (DEIS) has been issued and a Final 
Environmental Impact Statement (FEIS) is pending, discuss State 
procedures to guide the fulfillment of environmental review 
responsibilities, discuss changes in management that the State will 
make to provide additional staff and training, discuss how the State 
will verify legal sufficiency for the documents it produces, and 
describe in the application staff positions that will be dedicated to 
fulfill the environmental review responsibilities assumed, exceeds 
legal requirements and will add unnecessary time and cost.
    Section 327(b)(2) of title 23 U.S.C., directs the Secretary to 
issue regulations on the information required to be contained in any 
application of a State to participate in the Program including, at a 
minimum: (1) The projects or classes of projects that the Agencies may 
assign; (2) verification of the financial resources necessary to carry 
out the authority; and (3) evidence of the notice and solicitation of 
public comment by the States relating to participation of the State in 
the Program. This provision provides the Secretary with the authority 
and sufficient discretion to establish the requirements for the 
Program's application process. The information items listed in the 
statute describe the minimum information that the Secretary could 
request. In FHWA's experience with the pilot program, the additional 
information requested in the application regulations was necessary to 
properly evaluate the capacity and capability of the State to assume 
the Secretary's environmental review responsibilities. The Agencies 
have determined that the requirements adopted through this regulation 
balance the goal to provide flexibility to the States with the need to 
provide sufficient information for the Agencies to determine that 
States can meet the environmental review requirements and 
responsibilities that the Agencies would assign under the Program.
    Two State DOTs requested the Agencies reconsider making assignment 
and assumption of environmental review for highway projects a 
precondition for assignment and assumption of environmental review for 
railroad, public transportation, and multimodal projects. One State DOT

[[Page 55383]]

indicated that States may be more interested in pursuing assignment and 
assumption of environmental review for railroad, public transportation, 
and multimodal projects instead of highway projects. This State DOT 
asked for clarification on whether this requirement could be satisfied 
with the assignment and assumption of highway projects qualifying for 
categorical exclusion pursuant to 23 U.S.C. 326. One State DOT 
requested clarification that FHWA would not have authority and 
oversight over the actions of other Operating Administrations.
    Section 327(a)(2)(B) specifically establishes that the assignment 
and assumption of the Secretary's environmental review responsibilities 
for railroad, public transportation, and multimodal projects is 
available only if the State has been assigned and has assumed the 
Secretary's NEPA responsibilities with respect to one or more highway 
projects. The NEPA review responsibilities for the highway projects 
must be assigned and assumed under this Program. Assignment and 
assumption pursuant to 23 U.S.C. 326 for highway projects qualifying 
for categorical exclusions does not meet this statutory requirement. 
Assignment and assumption of the environmental review of railroad, 
public transportation, or multimodal projects that are under the 
jurisdiction of FRA or FTA does not transfer jurisdiction over the 
projects to FHWA, but would rather assign that authority to the State 
directly from FRA or FTA.
    One State DOT requested information on the timeframe required for 
the application review and approval process. The commenter recommended 
that field offices (Divisions and Regions) provide support to the 
States in the preparation of the application and that the approval be 
reserved to Headquarters offices.
    The Agencies do not have sufficient experience processing 
applications for the Program to determine what would be a reasonable 
timeframe for application review and approval. The timeframe required 
likely will depend on the details of each application, such as the 
scope of environmental responsibilities being sought, need for multiple 
exchanges for additional information, amount of materials included, and 
other factors. Continuous communication between the State and the 
Agencies during the application preparation process will reduce the 
needed time for review.
    One professional association stated that the Agencies should have a 
centralized clearinghouse to provide information on the different 
arrangements allowed under the Program. The commenter indicated that 
this would allow States to see what worked and did not work in the 
Program.
    The Agencies appreciate this recommendation and will consider this 
comment in implementing the Program as they continually seek ways to 
strengthen the Program.
    One State DOT stated that the NPRM did not contain adequate 
clarification on responsibilities associated with litigation. The 
commenter sought clarification on whether the Federal Government could 
reimburse legal fees incurred by a State. The commenter asked: (1) 
Whether the State was responsible for any legal fees associated with 
lawsuits based on Federal legal authorities assumed under the Program; 
(2) if this was the case, what were the limits to a State's exposure, 
if any; (3) whether there was a distinction between attorney's fees and 
any other legal fees related to a legal challenge; (4) what were 
``reasonable'' attorney's fees and ``eligible activities;'' (5) whether 
all legal costs are ``eligible activities'' and all legal fees are 
fully reimbursable if potential plaintiffs successfully argue that NEPA 
has been violated; (6) whether reimbursement would come from the 
Surface Transportation Program under 23 U.S.C. 104(b)(2) or from the 
Equal Access to Justice Act (28 U.S.C. 2412(d)(1)(A)); (7) whether 
there is a cap on reimbursement if the funds come from the Equal Access 
to Justice Act; and (8) whether there is any other cap on reimbursement 
of legal fees. Another State DOT wanted clarification on whether 
subsequent rulemaking was likely to offer direction on litigation 
responsibilities.
    Questions on litigation responsibilities and details relate to the 
implementation of the Program whereas this regulation addresses the 
application process for the Program. Although these comments fall 
outside the scope of this regulation, the Agencies want to clarify that 
the Equal Access to Justice Act does not establish a source of funds 
for the compensation of the opposing party's fees and costs. The Equal 
Access to Justice Act is the statutory vehicle authorizing this 
arrangement, not the source of the funds.
    One State DOT stated that the NPRM did not contain adequate 
clarification on the auditing and monitoring requirements of the 
Program. Another State DOT requested clarification on how the Agencies 
would develop auditing and monitoring reports, what information the 
Agencies will require the States to produce and in what timeframes, and 
what level of State resource commitment will be needed for these 
reports.
    These comments fall outside of the scope of this regulation, which 
focuses only on the application process. Information on auditing and 
monitoring expectations and detailed information on timeframes and 
commitment of resources relate to the implementation of the Program.

Section-by-Section Comments and Discussion of Changes

Section 773.101--Purpose

    The Agencies did not receive any comments on this section and, 
therefore did not make any changes to the regulatory language.

Section 773.103--Definitions

    One professional association agreed with the definition of ``class 
of projects,'' which included ``any defined group'' of projects. The 
commenter indicated that this definition provided flexibility to States 
to specify a set of projects. One professional association agreed with 
the definition of ``Federal environmental law,'' which included 
Executive Orders such as Executive Order 12898.
    The Agencies are adopting the definitions of ``class of projects'' 
and ``Federal environmental law'' as proposed by the NPRM. In addition, 
the Agencies are adopting the definitions of all other terms proposed 
in the NPRM that did not receive any comments.
Highways
    One State DOT requested that the definition of ``highway projects'' 
be expanded to include maintenance activities.
    The Agencies have made changes to the definition of ``highway 
projects'' to better align it with the term ``project'' in 23 U.S.C. 
101(a)(18) and avoid limiting the assignment only to construction of 
highway, bridges, or tunnels. ``Highway project'' is now defined as 
``any undertaking that is eligible for financial assistance under title 
23 U.S.C. and for which the Federal Highway Administration has primary 
responsibility.'' This would cover, for example, transportation 
alternative projects such as trails and environmental mitigation 
projects. Maintenance activities are not eligible for Federal-aid 
highway funds. Preventative maintenance may be an eligible activity 
(see http://www.fhwa.dot.gov/preservation/100804.cfm). The Agencies 
believe that the specific mention of preventive maintenance is not 
needed since this regulation does not address or change program 
eligibility.

[[Page 55384]]

Multimodal project
    Two State DOTs and one professional association indicated that the 
definition of ``multimodal project'' was overly broad. In particular, 
they objected to the inclusion of projects that only required the 
``special expertise'' of another Operating Administration within U.S. 
Department of Transportation (DOT). The commenters propose limiting the 
definition to those projects that require the approval of two or more 
Operating Administrations.
    The Agencies have made changes throughout the regulation that 
address the assignment of environmental review responsibilities 
associated with multimodal projects, which make it unnecessary to 
define the term ``multimodal project.'' These changes take into account 
the multiple scenarios that could lead to the development of a 
multimodal project. For example, in paragraphs 773.105(b) and 
773.109(d) the Agencies clarify that a State may retain the 
environmental review responsibilities of the assigning Agency even when 
a project becomes a multimodal project late in the project development 
process. A project would not automatically revert to the assigning 
Operating Administration with the introduction of a multimodal element. 
The State, however, would need to work with other Operating 
Administrations as appropriate (for example, establishing cooperating 
agency, lead agency, or joint lead agency relationships). The Agencies 
have also added a new paragraph 773.109(d)(1) that allows States to 
request assignment for discrete multimodal projects. This approach 
would be useful when the State knows that the project will be a 
multimodal project from its outset. Additionally, the Agencies have 
added a new paragraph 773.109(d)(2) that allows a State to request, at 
the same time it requests assignment from one Agency, the environmental 
review responsibilities from either of the other two Agencies. This 
programmatic approach would be useful when the State is willing to take 
on the FHWA, FTA, and FRA's combined environmental review 
responsibilities for the multimodal project even when it does not know 
the specific multimodal projects.
State
    One transit agency recommended the expansion of the definition of 
``State'' to allow for the delegation of environmental review 
responsibilities assumed by a State agency to a transit authority if 
the State agency finds that the transit authority is capable of 
carrying out those responsibilities. The transit agency recognized that 
under the proposed definition of ``State,'' a transit authority under 
its own board of directors would not be able to request assignment and 
assumption of environmental review responsibilities for proposed public 
transportation projects. The transit agency argued that transit 
agencies are most familiar with the environmental impacts that arise 
from transit, railroad, and multimodal projects they have designed (and 
will operate) and therefore are best equipped to perform NEPA 
responsibilities for public transportation projects.
    Section 327 authorizes the assignment and assumption of the 
Secretary's environmental review responsibilities to States. The 
Governor of the State is required to execute the agreement, 
particularly in those situations where the responsibilities assigned 
and assumed are beyond those related to highway projects. 23 U.S.C. 
327(c)(1). This requirement indicates that the Governor must have the 
authority to bind the State agency to the terms of the agreement and 
only State agencies under the direct jurisdiction of the Governor (or 
the mayor in the case of the District of Columbia) may participate in 
the Program. Nothing in NEPA, other environmental laws, or this Program 
authorizes the delegation or reassignment of environmental review 
responsibilities from the State to other entities. However, this does 
not prohibit other entities, like transit agencies that are not under 
the authority of the Governor, to develop studies, comment on 
environmental documents, and provide information that would support a 
proposed project and assist the responsible agency to perform its 
assumed environmental review responsibilities. For highway and public 
transportation projects, public agencies that are project sponsors may 
prepare environmental documents in accordance with 23 U.S.C. 139(c)(3). 
In fact, a project sponsor that is a State or local governmental entity 
receiving funds under 23 U.S.C. or 49 U.S.C. chapter 53 must be a joint 
lead agency for the NEPA process under 23 U.S.C. 139(c)(3), and would 
need to work with the State agency that has assumed the environmental 
review responsibilities for the transit project under this program.

Section 773.105--Eligibility

Applicants
    The Agencies have modified paragraph (a)(1)(v) to clarify that a 
State is expected to have sufficient financial resources and personnel 
resources to assume the responsibilities being sought. The Agencies 
have added the phrase ``and personnel'' to the sentence. This 
clarification was made to better align with the statutory provision in 
section 327(b)(4)(B) establishing that the Secretary may approve the 
application if ``the Secretary determines that the State has the 
capability, including financial and personnel, to assume the 
responsibility.''
    One State DOT, one professional association, and two public 
interest groups recommended the elimination of proposed section 
773.105(a)(3), establishing that the State DOT is the only agency that 
can assume the Secretary's environmental review responsibilities for 
railroad projects. The entities argued that removing this requirement 
and making eligible State agencies that oversee railroad projects 
within the State would provide valued flexibility, particularly for 
those States that have such statewide agencies (such as Virginia). The 
commenters indicated that the proposed regulations provided this 
flexibility to State agencies that oversee State public transportation 
projects and therefore should extend to those that oversee State 
railroad projects. One metropolitan planning organization opined that 
there was no identifiable benefit in assigning FRA-funded projects to 
the State DOT.
    The Agencies have deleted proposed paragraph 773.105(a)(3). The 
final rule will allow any State agency to apply for and assume the 
Secretary's environmental review responsibilities with respect to 
railroad projects as long as the agency meets the criteria established 
in section 773.103 for a State. For example, the agency must be under 
the direct jurisdiction of the Governor, must be responsible for 
implementing railroad projects, and cannot be a State-owned 
corporation.
    One professional association concurred with the requirement that 
the State DOT be the only entity within the State eligible to request 
assignment of environmental review responsibilities for highway 
projects because that agency is the entity responsible for 
administering the Federal-aid highway program within the State. The 
commenter also concurred with the allowance for any entity of the State 
to be eligible for environmental review responsibilities related to 
public transportation projects.
    The Agencies agree and did not make any changes to these 
requirements.
    One professional association indicated that the proposed rule did 
not explain which entity or entities would be eligible to assume the 
environmental review responsibilities for multimodal projects. The 
commenter stated that it

[[Page 55385]]

was reasonable to infer that a State DOT must obtain assignment for 
multimodal projects that have highway and/or rail components because 
the State DOT is the only entity that can obtain assignment for highway 
and rail projects, but indicated that this point is not clearly made.
    The Agencies considered this comment and decided not to prescribe 
which entity or entities would be eligible to assume environmental 
review responsibilities for multimodal projects. This allows States 
maximum flexibility for reaching this decision. There are situations 
where a single assigned entity could assume all environmental review 
responsibilities for the multimodal project. There are also situations 
where a joint lead agency arrangement is appropriate, where each entity 
maintains responsibility for environmental review of its respective 
project component. The final rule allows States the flexibility to 
determine which entity or entities would pursue environmental review 
assignment on multimodal projects. The lead agency also has the 
flexibility to involve other State agencies with relevant expertise as 
cooperating agencies, and States may consider this option.
Responsibilities
    Five State DOTs and two professional associations requested the 
Agencies remove the requirement for the States to assume all NEPA 
responsibilities. This would allow States to assume environmental 
review responsibilities for projects that qualify for particular 
classes of NEPA designation, such as categorical exclusions (CE) or 
environmental assessments/finding of no significant impacts (EA/FONSI) 
and not Environmental Impact Statements (EIS). Four State DOTs and one 
professional association suggested that the statutory language allowing 
for the assignment and assumption of ``classes of projects'' meant that 
the assignment and assumption is available for projects fitting a 
particular NEPA class of action. The commenters stated that this 
allowance would provide the greatest flexibility to the States, would 
make the Program more attractive, and would provide for intermediate 
steps before a State decides to participate in the environmental review 
of all projects. One public interest group supported the Agencies' 
proposal to require the States to assume all NEPA responsibilities. The 
commenter suggested that the environmental review process would be 
cumbersome, inefficient, and confusing to the public and decisionmakers 
if a State were to hand off environmental review responsibilities to 
the Federal agency after determining that an EIS is more appropriate 
for a project. The commenter also suggested that a partial assignment 
of NEPA responsibilities would improperly bias the analysis and outcome 
for particular projects. The commenter indicated that States would have 
an incentive to determine that an EA is the proper level of review even 
when a full EIS review is more appropriate for the project.
    After considering these comments, the Agencies have decided to 
retain the requirement proposed in the NPRM. The Agencies believe that 
allowing the assignment of only certain NEPA classes of action would be 
contrary to the purpose of the Program. Such an approach would create 
ambiguity about the assignment of the responsibility to determine class 
of action. A partial assignment of only projects that initially meet 
the criteria for an EA class of action would also negatively influence 
the objectivity of the NEPA analysis performed and the finding reached. 
For example, this type of partial assignment may lead to the 
underrepresentation of a project's potential for significant impacts as 
a way to avoid sending the project back to the assigning Agency when 
the State does not have assignment for EIS responsibilities. It may 
also lead to overrepresentation of the potential for significant 
impacts to push projects back to the Agency. For example, one possible 
EA process outcome is the determination that an EIS is needed and 
partial assignment by class of action could require transition of the 
project to an Agency when the Program is intended to assign 
administration and liability to the State. In retaining the EIS 
projects, the Secretary would not be advancing one of the underlying 
objectives of the Program, which is to transfer the benefit of having 
more control over the environmental review process of projects together 
with the risks (for example, the litigation risks). Finally, an 
alternative to this full NEPA assignment Program exists in 23 U.S.C. 
326 (assignment of environmental review of highway projects that 
qualify for CEs). States interested in an assignment of only CE 
determinations for highway projects or interested in an intermediate 
step before full NEPA assignment can use that program instead of the 
Program.
    One State DOT requested clarification on whether the State could 
assume the environmental review responsibilities under laws other than 
NEPA for projects where the State is not responsible for the NEPA 
review. In particular, the State DOT asked whether it could assume 
responsibility for consultation under section 7 of the Endangered 
Species Act for highway projects that were not assigned to the State 
for NEPA review.
    The Agencies have determined that assigning environmental review 
responsibilities of laws other than NEPA without assigning NEPA is 
neither appropriate nor efficient. The purpose of the Program is to 
allow States to assume all of the environmental review responsibilities 
associated with a project, starting with the NEPA process. The law 
establishes that if a State assumes the NEPA environmental review 
responsibilities, then the State may be able to assume responsibilities 
associated with other environmental requirements. Assumption of NEPA 
responsibilities is a precondition of receiving the environmental 
review responsibilities of other laws. See 23 U.S.C. 327(a)(2)(B) 
(establishing that assignment of NEPA responsibilities is a 
precondition of assignment of environmental review, consultation, or 
other action required under any Federal environmental law). The 
Agencies would not be able to assign review responsibilities for 
environmental requirements other than NEPA if they do not assign NEPA 
responsibilities for a given project.
    One State DOT and one professional association supported the 
Agencies' proposal that would allow assignment of environmental review 
responsibilities for the highway, railroad, or public transportation 
components of multimodal projects (identified as option 1 in the NPRM 
at 78 FR 53712, 53715, Aug. 30, 2013). The commenters stated that the 
Agencies' proposal is the narrowest interpretation that the regulation 
should allow. The commenters opposed a narrower interpretation (option 
3) that would allow the assignment and assumption of a limited group of 
multimodal projects (highway-railroad, highway-public transportation, 
public transportation-railroad, and highway-public transportation-
railroad projects) and only in situations where the State has 
successfully assumed the environmental review responsibilities of all 
the modes involved. The commenters indicated that this narrower 
interpretation was too restrictive, would limit the States' abilities 
to seek streamlining in delivering multimodal projects, and would 
create practical difficulties for States that have assumed 
responsibilities for one mode but not others. The professional 
association urged the Agencies to give further consideration to option 
2, which would allow for the assignment of all the Secretary's 
environmental review responsibilities for multimodal projects,

[[Page 55386]]

including those not specifically listed in section 327 (such as review 
responsibilities for airport and port projects). The commenter argued 
that the law provided statutory basis for assigning the environmental 
review responsibilities for any Operating Administration, not just 
those of the Agencies involved in this rulemaking.
    The Agencies have decided to implement option 1, which would allow 
a State to assume the Secretary's environmental review responsibilities 
for those elements of a multimodal project that are specifically 
mentioned in the statute (highway, railroad, and public 
transportation). The Agencies interpret the addition of multimodal 
projects in section 327 to mean that the State may retain the 
environmental review responsibilities of the assigning Agency even when 
a project becomes a multimodal project later in the project development 
process. The introduction of a multimodal element to a project does not 
automatically disqualify the project from assignment. However, the 
Agencies do not read section 327 as authorizing the assignment of 
environmental review responsibilities for elements within the purview 
of Operating Administrations other than FHWA, FRA, and FTA. As a 
result, the Agencies will retain the language proposed in the rule.
Projects
    Two State DOTs and one professional association objected to the 
exclusion of projects that cross State lines (transboundary projects) 
from assignment under the Program. The professional association 
proposed that at a minimum, the Agencies allow for assignment of 
transboundary projects if the States involved have assumed the 
environmental review responsibilities. One State DOT indicated that the 
exclusion for transboundary projects should not be automatic and that 
the Agencies should allow for assignment regardless of whether the 
neighboring State has assumed the environmental review 
responsibilities. Another State DOT indicated that there was no reason 
why a State could not successfully conduct the NEPA process jointly 
with another State that has assumed NEPA review responsibilities.
    The Agencies considered the comments in light of two scenarios: one 
in which only one State participates in the Program, and a second where 
all the States involved participate in the Program. The Agencies 
decided to retain the regulatory restriction for the first scenario 
because these situations involve administrative and legal difficulties 
that necessitate special consideration by the Federal Government. For 
example, in situations where one State participates in the Program and 
another does not, the State with assignment would have to share lead 
responsibilities with the assigning Agency with no added benefit since 
the Agency would retain the lead role, continuing to bear 
decisionmaking responsibilities and risks. The second scenario also 
raises administrative and legal difficulties that support the 
restriction. Disputes between States may necessitate the Secretary's 
involvement, putting the Secretary in an inappropriate position of 
becoming an arbiter between two sovereign entities. For these reasons 
the Agencies have decided to retain the restriction of assignment of 
projects that cross State boundaries.
    Two State DOTs and one professional association objected to the 
exclusion of projects located at international borders. The commenters 
argued that the exclusion should be limited to projects that cross 
international borders. The professional association stated that 
projects located at an international border but located entirely within 
the United States do not raise the same issues involved with projects 
that cross an international border. The commenter suggested that 
projects at international borders could be excluded from the assignment 
by agreement (through the Memorandum of Understanding (MOU)) rather 
than through regulation if there are particular issues of concern such 
as a requirement to obtain consent from a bi-national body.
    The Agencies have considered the comments and have decided to 
retain the regulatory restriction against assignment of projects at 
international borders. These types of projects could result in 
transboundary impacts that would require coordination with other 
Federal agencies, such as the Department of State and the Department of 
Homeland Security and may require coordination with foreign nations. 
These types of projects require special consideration to ensure that 
the interests of the Federal Government (for example, national security 
and international policy) are represented appropriately. For example, 
these types of projects deserve special attention to determine how they 
affect or relate to the U.S. Government's national and international 
policies or responsibilities pursuant to treaties with other nations. 
The Agencies have changed the ``at'' to ``adjacent to'' for clarity.
    Three State DOTs and one professional association stated that the 
rule should not exclude automatically from assignment and assumption 
projects designated as high risk projects under 23 U.S.C. 106. One of 
the State DOTs indicated that Federal law did not exempt high risk 
projects from NEPA assignment and that FHWA's authority to reject 
eligibility for projects included in an approved assigned program was 
not consistent with the law. The professional association indicated 
that section 106(c) was intended to address State approvals of plans, 
specifications, and estimates (design approval) for projects on the 
Interstate System, and the high risk concept is created in the context 
of design review and approval, not on environmental review of projects. 
The professional association and two of the State DOTs opposing this 
exclusion suggested eliminating the regulatory exclusion and addressing 
restrictions for such projects through the individual agreements with 
the States. Another State DOT recommended adding the word 
``interstate'' before ``projects'' in proposed paragraph 773.105(c)(3) 
to clarify that high risk projects only apply to projects on the 
Interstate System.
    After considering the comments received, the Agencies have decided 
to delete this exclusion from the regulation. Section 106(c) of title 
23 U.S.C. allows the assignment of the Secretary's responsibilities 
with respect to design, plans, specifications, estimates, contract 
awards, and inspections for highway projects on the National Highway 
System, including projects on the Interstate System. Section 106(c)(4) 
states that the Secretary cannot assign any responsibilities with 
respect to design, plans, specifications, estimates, contract awards, 
and inspections to a State for projects on the Interstate System if the 
Secretary determines the project to be in a high risk category. 
Interstate System projects for which assignment of section 106 
responsibilities is not appropriate may be projects where assignment of 
environmental review responsibilities is not appropriate. However, this 
is a fact-specific decision that should take into account all the 
circumstances that lead to the high risk category designation instead 
of a regulatory exclusion. There may be unique situations where an 
Interstate System project may fit a high risk category under 23 U.S.C. 
106(c)(4) and where assignment under this Program remains feasible and 
preferable. Presently, the only national high risk category is for high 
risk grantees under 49 CFR 18.12. The Agencies believe that the section 
327(b)(4) requirement for the Agencies to take into account the State's 
capability provides sufficient discretion to determine if a high risk 
grantee may

[[Page 55387]]

participate in the Program. The negotiation of the agreement would 
provide the appropriate opportunity to determine the possible exclusion 
of specific high risk projects in the State. A regulatory exclusion is 
not needed at this time.
    One State DOT and one professional association commented on the 
authority in proposed paragraph 773.105(d), which would allow the 
Agencies to exclude projects on a case-by-case basis based on unique 
circumstances. The professional association recommended the exercise of 
this authority through the individual agreements to customize the 
unique circumstances for each State. The State DOT recommended defining 
these unique circumstances in the individual agreements if not the 
rule. The commenter indicated that the preamble identified examples but 
the draft rule did not identify clear parameters that would signal to 
the State when to coordinate with the Agencies to determine if it may 
assume the project, or identify a process for making such 
determinations. The State DOT was concerned that exercising this 
discretion late in the environmental review process potentially could 
cause substantial delays in project delivery.
    The Agencies have decided to retain the 773.105(d) provision to 
alert applicants that there may be unique situations where the 
assigning Agency may withhold or withdraw assignment of environmental 
review for a particular project after the Agency and State have 
executed the MOU. However, the Agencies agree that the MOU should 
address the circumstances where the assigning Agency may withhold or 
withdraw assignment, as well as the process for how those particular 
circumstances would be addressed.

Section 773.107--Pre-Application Requirements

Coordination Meeting
    Three State DOTs commented on the requirement for a pre-application 
coordination meeting in paragraph 773.107(a). One of the State DOTs 
stated that this is a given and does not need to be prescribed in 
regulation. Another of the State DOTs indicated that the Agencies 
should simply require coordination prior to developing and submitting 
the application. The State DOT indicated that informal contact may be 
more appropriate in some circumstances than a single, formal meeting, 
and the requirement for a meeting would reduce the ability of the State 
and applicable Agency to find coordination mechanisms that are most 
convenient and effective for the circumstances. Another of the State 
DOTs recommended that the coordination meeting include representatives 
from offices above the FHWA Division Office to ensure consistency 
around the country.
    The purpose of the meeting requirement is to ensure that 
coordination has taken place before the State takes the step of seeking 
public comment on its application. The required meeting is not meant to 
be the only coordination point between the State applying for 
assignment and the relevant Agencies. It is meant to define the minimum 
coordination requirement prior to public notice of the application, to 
ensure efficient and effective use of resources of the State applying 
for assignment and the relevant Agencies. The regulation does not 
prescribe the form, manner, and timing of the meeting other than to 
indicate that it must occur prior to the State's publication of the 
application for public comment. This allows the State and the 
applicable Agency the flexibility to identify what coordination 
mechanisms are most convenient and effective for their circumstances. 
The Agencies have made edits to clarify that the Headquarters 
representatives of the appropriate Agency must participate in the 
required coordination meeting.
Public Comment on the State's Application
    One State DOT indicated that the use of the phrase ``appropriate 
State public notice laws'' in paragraph 773.107(b) is likely to cause 
confusion because most States do not have a public notice law that 
specifically prescribes the public notice requirements for this type of 
action. The commenter recommended revision to the proposed rule to 
require publication of a notice of the application's availability in 
the State's periodical equivalent to the Federal Register, with 
instructions on how to access the full application on the State's Web 
site. The commenter indicated that posting the entire application on 
the State's Web site would satisfy the requirement to publish the 
complete application listed in section 327(b)(3)(B).
    Section 327(b)(3)(B) requires that the State provide notice and 
solicit comment on the application ``in accordance with the appropriate 
public notice law of the State.'' The States are in the best position 
to interpret their State public notice laws and determine what 
constitutes appropriate statewide notification under those laws. As a 
result, the Agencies have decided to retain the proposed language.
    One State DOT stated that the proposed rule's requirement to seek 
the views from ``other State agencies, tribal agencies, and Federal 
agencies that may have consultation or approval responsibilities 
associated with the project(s) within State boundaries'' exceeded legal 
requirements and would add unnecessary time and cost.
    Section 327(b)(2) authorizes the Secretary to issue regulations on 
the information required to be contained in any application of a State 
to participate in the Program including, at a minimum, (1) the projects 
or classes of projects that the Agencies may assign, (2) verification 
of the financial resources necessary to carry out the authority, and 
(3) evidence of the notice and solicitation of public comment by the 
States relating to participation of the State in the Program. This 
provision provides the Secretary the authority and sufficient 
discretion to establish the requirements for the Program's application 
process. The Agencies believe that the views of other State, tribal, 
and Federal agencies that may have environmental consultation or 
approval responsibilities are important factors in evaluating the 
request for assignment. These entities may have worked with the State 
before and may provide information relevant to the Agencies' decision 
whether to assign the Secretary's responsibilities or information that 
could assist in the development of the agreement.
    One transit agency and one professional association expressed 
support for the requirement of requesting comments from recipients of 
Federal financial assistance under chapter 53 of title 49, U.S.C. The 
commenters recommended the Agencies give considerable weight and 
deference to these opinions in making assignment decisions with regard 
to the Secretary's environmental review responsibilities associated 
with public transportation projects. The transit agency suggested that 
the procedures allow for transit authorities to opt-out of the 
assignment on a programmatic basis instead of a project-by-project 
basis. The professional association supported the opt-out process for 
transit authorities but recommended this be available on a programmatic 
and project-by-project basis. Both commenters requested that the 
assignment documents, including the MOU, clearly and unambiguously 
identify the excluded projects. One metropolitan planning organization 
expressed concerns with the availability of the assignment for FTA and/
or FRA-funded projects. The commenter indicated that as a direct 
recipient of FTA funds, the metropolitan planning

[[Page 55388]]

organization works directly with FTA to complete projects. The 
commenter opined that there was no identifiable benefit in assigning 
FTA-funded or FRA-funded projects to the State DOT.
    Section 327(a)(2)(B)(iii) clearly establishes that recipients of 
funding under chapter 53 of 49 U.S.C. may request the Secretary to 
maintain the environmental review responsibilities with respect to one 
or more public transportation projects. The Agencies have added an 
additional sentence to paragraph 773.107(b)(1) to clarify that the 
chapter 53 recipients may request that the Secretary maintain the 
public transportation environmental review responsibilities either on a 
project-by-project or programmatic basis. The Agencies agree that the 
MOUs should identify excluded projects individually and/or 
programmatically. The FTA will take these comments into account in 
making its final decision on whether to assign the identified projects. 
The State DOT is not the only entity within the State that may assume 
the environmental review responsibilities associated with public 
transportation and railroad projects; however the entity must be a 
State agency reporting to the governor.
    One State DOT recommended revising the language in paragraph 
773.107(b)(2) to clarify that the comments submitted and addressed by 
the State must be for all ``timely comments in response to the public 
notice.''
    The Agencies considered this comment and have decided against 
prescribing a timeframe for comments or establishing which comments are 
or are not timely. These issues relate to the time between the close of 
the comment period and the submission of an assignment application to 
the Agencies and the particulars of the State's public notice law. 
States are in the best position to interpret their laws and determine 
which comments were timely in accordance with their public notice laws. 
However, the Agencies encourage States to take into account comments 
submitted after the filing date, to the extent practicable, to avoid 
having to address these comments for the first time during the Federal 
Register notice and comment process established through section 
773.111. The Agencies have made technical edits to paragraph (b)(2) to 
indicate that the State must submit copies of all comments received as 
a result of the publication of the application and that the State must 
develop responses for all substantive comments.
Sovereign Immunity Waiver
    Two State DOTs and one professional association opposed the 
requirement for States to secure the waiver of sovereign immunity prior 
to submitting the application to the appropriate Agency. One State DOT 
indicated that obtaining a waiver of sovereign immunity often requires 
state legislative and/or gubernatorial action that could extend the 
application process. The commenters requested a change in the rules to 
allow States to show proof of waiver of sovereign immunity prior to 
signing the agreement. The commenters indicated that, as part of the 
application process, the regulations could require a State to describe 
the steps it will take to obtain the waiver and the status of those 
efforts, or provide a plan and a schedule for meeting this requirement. 
One State DOT stated that the law's requirement for a waiver of 
sovereign immunity was a major impediment for their participation in 
the Program because in its situation, only the State legislature can 
waive sovereign immunity, and there were no precedents in the State for 
seeking such a waiver.
    The Agencies have considered these comments and have decided to 
retain the requirement as presented in the NPRM. The Agencies expect an 
interested State to waive its sovereign immunity under the U.S. 
Constitution's 11th Amendment to the extent needed to accept the 
jurisdiction of the Federal courts for the compliance, discharge, and 
enforcement of the environmental review responsibilities under the 
Program. See 23 U.S.C. (c)(3)(B). This sovereign immunity waiver is a 
significant precondition for the State's participation in the Program 
that typically requires State legislative action (in some States 
gubernatorial action may be sufficient). The absence of the waiver at 
the application stage is an indicator that the State is not ready for 
consideration for the Program.
Comparable State Laws
    One State DOT and one professional association sought clarification 
on the requirement for States to have laws in effect that authorize the 
State to take actions necessary to carry out the responsibilities 
sought. The commenters were unclear whether the provision required 
State legislation specifically authorizing assignment or whether it was 
sufficient for the State to rely on existing laws authorizing the State 
agency to plan and deliver transportation projects or to engage in 
environmental review.
    This provision, based on 23 U.S.C. 327(c)(3)(C)(i), does not 
require the passage of new State laws and regulations if the State 
already has existing laws that provide for the environmental review of 
surface transportation projects. States may rely on existing laws and 
regulations to meet this requirement if they determine such laws are 
sufficiently broad in scope and effect. States should have, for 
example, laws and regulations that authorize the State agency to 
conduct reviews of projects within its jurisdiction and to take action 
to ensure that the environmental mitigation commitments are carried out 
for the project. The State laws and regulations should not conflict 
with existing Federal environmental review requirements, including 
those procedures established by the assigning Agency. The initial 
meeting and continuous coordination would facilitate a discussion on 
whether existing laws meet the necessary requirements of this 
provision.
    One State DOT and one professional association opposed the 
requirement for a State to demonstrate that it has laws comparable to 
the Freedom of Information Act (FOIA) (5 U.S.C. 552) prior to 
submitting the application to the appropriate Agency. The commenters 
requested a change in the rules to allow States to show proof of laws 
comparable to FOIA prior to signing the agreement. The commenters 
indicated that, as part of the application process, the regulations 
could require a State to provide a plan and a schedule for meeting this 
requirement.
    The Agencies have considered these comments and have decided to 
retain the requirement as presented in the NPRM. As is the case for the 
sovereign immunity provision, the availability of laws comparable to 
FOIA is an important precondition for Program participation. 23 U.S.C. 
327(c)(3)(C)(ii) requires a State to certify that it has laws that 
``are comparable to section 552 of title 5'' of the U.S.C. The absence 
of the certification at the application stage is an indicator that the 
State is not ready for consideration for the Program.
    Two public interest groups stated that the word ``comparable'' when 
referring to FOIA requirements was ambiguous. The commenters 
recommended a few changes to address this issue. First, the commenters 
suggested changing the text to indicate that the public disclosure laws 
in effect must be ``at least as stringent'' as FOIA. Second, the 
commenters suggested the rule include an analogue to the FOIA fee 
waiver provision for record requests that serve the public interest. 
The commenters indicated that public interest groups and individual 
citizens often do not have sufficient resources to pay the bills

[[Page 55389]]

demanded by State agencies, which can amount to thousands of dollars 
for a single request. The commenters suggested that the absence of such 
a provision would allow State agencies to purposefully run-up the costs 
by producing large volumes of marginally responsive documents to chill 
future records requests. Third, the commenters suggested that the rule 
require State public records acts to include a statutory time frame 
requirement for the production of records comparable to the 20-day 
obligation in FOIA. The commenters stated that delayed response times 
can hamper the ability of citizens to actively engage in the NEPA 
process and timely access is of utmost importance when there is an 
opportunity to comment on a NEPA document, as comment periods are 
narrow and strictly enforced. The commenters suggested including a 
requirement for State public records laws to prohibit the recovery of 
search or review fees when the agency fails to meet a statutory 
deadline absent exceptional circumstances. The commenters also 
requested that the rule require a State to certify that it has the 
ability to comply with its public records act and to provide documents 
in a timely fashion.
    The Agencies have considered these comments and have decided 
against codifying additional criteria to determine whether a state 
public disclosure law is comparable to FOIA. Section 327(c)(3)(C)(ii) 
specifically requires that any decision regarding the public 
availability of a document under the State law be reviewable by a court 
of competent jurisdiction; however, the provision does not otherwise 
establish criteria to determine comparability. The Agencies believe 
that it is sufficient to require the State Attorney General (or other 
State official legally empowered by State law) to certify that its 
public disclosure law is comparable to FOIA. In addition, the public 
involvement processes will provide the public with an opportunity to 
raise any concerns regarding a particular State's public records law 
and its comparability with FOIA.
    Two public interest groups recommended that the final rule clarify 
that a State must also submit to the jurisdiction of the Federal 
Administrative Procedure Act (APA), which governs Federal NEPA review.
    The Agencies have considered this comment and have determined that 
a change in the text of the regulation is unnecessary. A State submits 
itself to the jurisdiction of the APA by accepting the Secretary's 
responsibilities with regard to NEPA and other Federal environmental 
requirements and by submitting to the jurisdiction of the Federal 
courts. Section 327(d)(2) establishes that a civil action for failure 
to carry out the responsibilities of the Secretary under this Program 
would be ``governed by the legal standards and requirements that would 
apply in such a civil action against the Secretary had the Secretary 
taken the actions in question.'' This includes the legal standards 
established under the APA.

Section 773.109--Application Requirements

    One State DOT objected to the requirement in paragraph 
773.109(a)(1) for the State to identify in its application each project 
for which a DEIS has been issued and a FEIS is pending, and indicated 
that this provision exceeded legal requirements and would add 
unnecessary time and costs. One State DOT requested that the MOU 
include guidance for transitioning active projects from the appropriate 
Federal agency to the State.
    The requirement for States to identify active projects is important 
for establishing how these projects would be handled once the 
assignment occurs. This provides interested agencies and the public 
with notice of those active projects that the State would handle and 
those that the Agency would handle once assignment occurs. Section 
327(b)(2) gives the Secretary the authority and sufficient discretion 
to establish the requirements for the Program's application process, 
which in this case includes requesting information on active projects.
    One State DOT objected to the requirement in paragraph 
773.109(a)(3)(i) for the State to provide a summary of State procedures 
in place to guide development of documents, analyses, and consultations 
required to fulfill the environmental review responsibilities. The 
commenter indicated that this provision exceeded legal requirements and 
would add unnecessary time and costs. One professional association 
expressed concern with the NPRM's lack of discussion on the need to 
keep NEPA reviews separate from State environmental review 
requirements. The commenter indicated that it was important that the 
application demonstrate or show that the State will conduct NEPA 
analyses strictly in accordance with NEPA and its implementing 
regulations. The commenter suggested adding a requirement to the 
section for ``an explanation of how the State will ensure that NEPA 
analyses and analyses conducted under State law will be kept separate 
and ensure that NEPA analyses will strictly reflect the requirements of 
NEPA and its implementing Federal regulations.''
    Section 327(b)(2) gives the Secretary the authority and sufficient 
discretion to establish the requirements for the Program's application 
process. Information about a State's procedures is an important factor 
to determine if the State has the capability and authority to engage in 
environmental reviews for projects. It also gives the appropriate 
Agency the opportunity to determine if there are any elements of the 
procedures that may be inconsistent with the Agency's environmental 
review procedures. Providing a summary and a location where the 
procedures are documented would be sufficient for the Agencies. The 
Agencies have added a sentence in paragraph 773.109(a)(3)(i) to clarify 
that in those States with their own State environmental review 
procedures, the procedures or summary should include a discussion on 
the differences (if any) between the State's environmental review 
standards and the Federal environmental review requirements.
    One State DOT commented on the requirement in paragraph 
773.109(a)(3)(iii) asking a State to provide a discussion of how it 
will verify legal sufficiency for the environmental documents it 
produces. The commenter sought clarification that the legal sufficiency 
review requirement applied only for a FEIS pursuant to 23 CFR 
771.125(b) and certain approvals under section 4(f) of the Department 
of Transportation Act (23 U.S.C. 138 or 49 U.S.C. 303), rather than for 
all environmental documents. The commenter requested a modification 
clarifying that the rule requires legal sufficiency review only in 
these two circumstances.
    For FHWA and FTA projects, a legal sufficiency review is required 
for a final EIS (23 CFR 771.125(b)) and for section 4(f) approvals (23 
CFR 774.7(d)). For FRA projects, a legal sufficiency review is required 
for determinations that an action is not a major FRA action (section 
4(b) of FRA NEPA procedures, 64 FR 28545, 28547, May 26, 1999), for 
every FONSI (section10(c), 64 FR at 28551), for every section 4(f) 
determination (section 12(b)(6), 64 FR at 28552), every DEIS (section 
13(c)(5), 64 FR at 28553), and every FEIS (section 13(c)(13), 64 FR at 
28553). The FRA encourages, but does not require, its Program Office to 
seek advice as to the legal sufficiency of environmental assessments 
(section 10(d), 64 FR at 28550). Although these are the only situations 
where either the regulations or the NEPA procedures

[[Page 55390]]

require legal sufficiency review, they are not the only situations 
where legal sufficiency may be warranted in the NEPA review process. 
For example, as a matter of practice FHWA engages in legal sufficiency 
review of Federal Register notices announcing the 150-day statute of 
limitations period for environmental review approvals and decisions 
pursuant to 23 U.S.C. 139(l). In addition to legal sufficiency 
determinations, legal review may be warranted in other situations like 
in the development of interagency agreements or programmatic 
approaches. There may also be circumstances where a review that 
normally does not require legal sufficiency review may benefit from a 
legal review to identify and address legal risks before determinations, 
findings, or decisions are issued. The Agencies are interested in 
understanding the process that the State seeking assignment would have 
in place to engage with their legal counsel for seeking legal advice in 
the environmental review process and for obtaining the legal 
sufficiency determination in those instances that are required by law, 
regulation, policy, or guidance. This is needed so the Agencies can 
understand the capability of the State to address legal issues in the 
Federal environmental review process. To emphasize this point, the 
Agencies have changed the information requirement in paragraph 
773.109(a)(3)(iii) to ``legal reviews'' instead of limiting it to legal 
sufficiency reviews and have added the phrase ``including legal 
sufficiency reviews where required by law, policy, or guidance'' to 
indicate that the appropriate Operating Administration may require 
legal sufficiency reviews through policy or guidance.
    One State DOT objected to the requirement in paragraph 
773.109(a)(3)(iv) for States to discuss how they will identify and 
address those projects that would normally require Headquarters' prior 
concurrence of the FEIS under 23 CFR 771.125(c). The State DOT stated 
that this provision exceeded legal requirements and would add 
unnecessary time and costs. Another State DOT noticed a typographical 
error in the paragraph and requested that ``Headquarters'' be changed 
to the possessive form ``Headquarters'.''
    Section 327(b)(2) gives the Secretary the authority to establish 
the requirements for the Program's application process. The prior 
concurrence process provides an opportunity for FHWA's and FTA's 
Headquarters offices to review complex or controversial projects to 
ensure that they are consistent with national policy, do not establish 
negative precedents, and to brief senior leadership staff of the 
Agency. Information on how the State will address the prior concurrence 
process for FHWA and FTA projects, as required by the regulations for 
environmental review of highway and public transportation projects in 
23 CFR 771.125(c), is an important factor for determining whether the 
State has the resources and capabilities to address complex and 
controversial issues that require involvement and decisions at the 
highest levels in the State. As a result, the Agencies have decided to 
retain this requirement. The Agencies have accepted the edit proposed 
by the State DOT to change ``Headquarters'' to its possessive form.
    One professional association noted that section 1313(b)(2) of MAP-
21 amended the Program by clarifying that a State cannot be required, 
as a condition of obtaining assignment, to forego any project delivery 
method permitted in the absence of assignment. Another professional 
association urged the Agencies to focus on flexibility. The commenter 
stated that the application process should allow States to assume 
certain parts of the review process, while leaving others to the 
Federal Government depending on what is in the best interest of 
advancing the project.
    The Agencies have noted these comments and have added paragraph 
773.109(a)(3)(v). In the pilot, FHWA had reservations about allowing 
State DOTs to assume environmental review responsibilities for projects 
where the State DOT would also pursue acquisition of rights-of-way 
before the completion of the NEPA process. The FHWA's concern was that 
this project flexibility had the potential to introduce bias in the 
NEPA review process and in the general decisionmaking process in favor 
of the alternative that would benefit from the acquired rights-of-way. 
This risk of bias is mitigated when the Federal agency remains 
responsible for the integrity of the NEPA environmental review process. 
See generally 42 U.S.C. 4332(2)(D) (establishing that for non-
assignment situations Federal officials retain responsibility of the 
scope, objectivity, and content of an EIS even if a State agency is 
allowed to prepare the document); 40 CFR 1502.14(a) (responsibility of 
the Federal agency to objectively evaluate all reasonable 
alternatives); 40 CFR 1506.1(b) (responsibility to notify applicant 
that the Federal agency will take appropriate action to ensure the 
objectives and procedures of NEPA are achieved when it becomes aware 
that applicant is about to take action that would have an adverse 
environmental impact or limit the choice of reasonable alternatives 
before a ROD is issued); 40 CFR 1506.5(a) (responsibility to 
independently evaluate information submitted by an applicant for use in 
the EIS and for its accuracy); and 40 CFR 1506.5(c) (responsibility to 
avoid conflicts of interests). See also Burkholder v. Peters, 58 Fed. 
Appx. 94 (6th Cir. 2003) (holding that independent oversight by the 
Federal agency ensured objectivity and integrity of the NEPA process in 
a conflict of interest situation); Associations Working for Aurora's 
Residential Environment v. Colorado Dept. of Transp., 153 F.3d 1122 
(10th Cir. 1998) (finding that Federal oversight can be taken into 
account to determine that the integrity and objectivity of the NEPA 
process was not compromised). It was FHWA's position that allowing a 
State DOT to be both the entity pursuing the pre-NEPA right-of-way 
acquisition and the responsible entity for the environmental review 
process of the project would create a conflict of interest and have the 
potential to affect the objectivity and integrity of the NEPA process. 
Based on these concerns, FHWA prohibited this project flexibility from 
being used in assigned projects.
    Section 1313 amended 23 U.S.C. 327 by adding subparagraph 
(a)(2)(F), establishing that the ``Secretary may not require a State, 
as a condition of participation in the [P]rogram, to forgo project 
delivery methods that are otherwise permissible for projects.'' The 
Agencies have taken into account the statute's language allowing States 
to pursue all otherwise permissible project delivery methods and 
interpret this language to mean that the States are responsible for 
making the decision on whether the proposed project delivery method 
(e.g., early acquisition, at-risk final design) and review process meet 
the objectivity and integrity requirements of NEPA. The Agencies have 
added a new paragraph 773.109(a)(3)(v) to allow for States to discuss 
the decisionmaking process they will use to determine whether their 
proposed project delivery method meets the objectivity and integrity 
requirements of NEPA. This new paragraph would require a ``discussion 
of the otherwise permissible project delivery methods the State intends 
to pursue, and the process it will use to decide whether pursuing those 
project delivery methods and being responsible for the environmental 
review meet the objectivity and integrity requirements of NEPA.''

[[Page 55391]]

    One State DOT objected to the requirement in paragraph 
773.109(a)(4) for States to include a description of staff positions, 
including management, that will be dedicated to fulfill the additional 
functions needed for the assigned responsibilities, personnel needs 
(including legal counsel), summary of anticipated resources, and 
commitment to make the anticipated financial resources available. The 
State DOT stated that this provision exceeded legal requirements and 
would add unnecessary time and costs. Another State DOT suggested 
removing the requirement for States to provide information on staffing 
levels, organizational structure, and use of consultant services, 
indicating that the State DOT was concerned that this will allow the 
Agencies to mandate organizational requirements as a precondition of 
the assignment. The commenter stated that the Agencies should focus on 
conducting outcome-based reviews where the Agencies would assess 
program performance based on discreet metrics (such as the number of 
legal challenges to a State's NEPA documentation) and identify areas of 
risk based on actual program implementation, rather than a review of a 
proposed organizational structure. One public interest group requested 
that the rule require a State to certify that it has the ability to 
comply with its public records act and to provide documents in a timely 
fashion.
    Section 327(b)(2) gives the Secretary the authority to establish 
the requirements for the Program's application process. Description of 
staff positions that will be dedicated to fulfill the additional 
functions needed for the assigned responsibilities, personnel needs 
(including legal counsel), summary of anticipated resources, and 
commitment to make the anticipated financial resources available is a 
critical piece of information for the Agencies to determine if the 
State has the capability, including financial and personnel resources, 
to assume the responsibilities under the Program (see 23 U.S.C. 
327(b)(4)(B)). The purpose of the information is to assist in the 
decision whether to approve the application and is, therefore, required 
at the application stage. Information on the State's performance in the 
Program is useful for decisions on whether to renew the State's 
participation but not appropriate for initial approval decisions. The 
information could allow the Agencies to make suggestions and 
recommendations to ensure the successful implementation of the Program 
within the State. The appropriate Agency should be able to determine if 
the resources proposed are adequate as this is part of its 
responsibility to verify that the State has the capability, including 
financial and personnel, to assume the responsibilities.
    Two State DOTs commented on the provision in paragraphs 
773.109(a)(6)-(7) requiring States to provide certification by the 
State Attorney General or other State official legally empowered by 
State law that the State can and will assume the responsibilities 
sought, that the State consents to the jurisdiction of Federal courts 
with respect to the responsibilities sought, and that the State has 
laws that are comparable to FOIA. One of the State DOTs indicated that 
certification could be evidenced by the approval of the application and 
not a separate certification by the State's Attorney General. The 
commenter also indicated that the requirement for certification on laws 
comparable to FOIA is not in the statute. The State DOT stated that 
this provision exceeded legal requirements and would add unnecessary 
time and costs. The other State DOT stated that the requirement for a 
certification from the State Attorney General deviated from the 
statutory requirement in 23 U.S.C. 327(c)(3) and imposed an unnecessary 
procedural requirement on the State's submission of the application. 
The commenter indicated that for some States, it may not be the 
practice of the Attorney General to issue (and there may be no State 
official legally empowered by State law to make) the types of 
certification listed in the NPRM. The State DOT indicated that 
inclusion of the certifications in the State application should suffice 
since the Governor signs the application and executes the MOU. The 
commenter suggested the Agencies change the phrase ``can and will 
assume the responsibilities of the Secretary'' in paragraph 
773.109(a)(6) if the Agencies decide to keep the certification 
requirement. The State DOT indicated that a certification that the 
State ``can and will assume the responsibilities of the Secretary'' is 
more appropriate for the individual signing the application or the MOU 
on behalf of the State. The State DOT commented that a lawyer may 
appropriately certify that the State is legally empowered by State law 
to assume the responsibilities of the Secretary.
    The Agencies have considered these comments and have decided to 
retain the requirement as proposed. Section 327(c)(3)(B) establishes 
that the Governor (or for highway projects, the top-ranking 
transportation official responsible for highway construction) must 
expressly consent, on behalf of the State, to accept the jurisdiction 
of the Federal courts for the compliance, discharge, and enforcement of 
any responsibility of the Secretary assumed by the State. In evaluating 
how to implement this requirement, the Agencies considered how States 
waive their sovereign immunity under the 11th Amendment of the U.S. 
Constitution (that is, how they consent to the jurisdiction of Federal 
courts). In many States this authority rests with the legislature 
instead of the Governor. In these circumstances, an affirmation by the 
Governor or a State official waiving sovereign immunity may lack legal 
authority. Identifying who can and how to waive sovereign immunity 
involves legal research and interpretation of State laws. The Agencies 
believe that States' attorneys are in the best position to determine 
the validity of the waiver of sovereign immunity within their States. 
Therefore, the Agencies have decided to rely on the legal opinion of 
the State official who is empowered to issue binding legal opinions for 
the State's executive branch as a way to ensure that the sovereign 
immunity waiver is valid and supported by law. Typically this official 
is the State Attorney General, but in some States the agency's (for 
example, State DOT) general counsel may have the authority under the 
State Constitution or State statute to issue legal opinions that bind 
the State. The Agencies have added the phrase ``to issue legal opinions 
that bind the State'' to make clear that another State official that 
has this authority may issue the certification. The Agencies interpret 
section 327(b)(2) as providing the Secretary with sufficient authority 
to establish this as a requirement for the application process.
    The Agencies also believe that the State Attorney Generals (or 
other State official empowered by law to issue binding legal opinions) 
are in the best position to opine that the State public records laws 
are comparable to FOIA and that the State has laws that authorize it to 
take actions necessary to carry out the responsibilities being assumed. 
This certification is explicitly required in section 327(c)(3)(C). The 
Agencies interpret section 327(b)(2) as providing the Secretary with 
sufficient authority to establish this as a requirement for the 
application process.
    The Agencies agree with the comments objecting to the manner in 
which the requirement is phrased which indicates that the State 
Attorney General must certify that the State ``can and will assume the 
responsibilities of the Secretary.'' The Agencies have changed the 
phrasing to a certification that the

[[Page 55392]]

State ``has legal authority'' to assume the responsibilities of the 
Secretary.
    Two State DOTs commented on the requirement in paragraph 
773.109(a)(10) requiring the State Governor's signature approving the 
application. One State DOT indicated that this exceeded legal 
requirements and would add unnecessary time and costs. The other State 
DOT recommended the rule retain the flexibility in the previous version 
of part 773 allowing the head of the State agency having primary 
jurisdiction over highway matters to sign the Program application.
    The Agencies have considered this comment and have decided to make 
the change requested to allow the top ranking transportation official 
in the State who is charged with responsibility for highway 
construction to sign the Program application with respect to highway 
projects. This change is consistent with the statutory language in 
section 327(c)(1) requiring the Governor or the top ranking 
transportation official in the State who is charged with responsibility 
for highway construction to execute the agreement. The purpose of 
requiring the Governor's signature on the application instead of 
limiting the Governor's involvement to the execution of the agreement 
is to ensure that the highest level in the State's executive branch is 
aware of the resource commitment involved with implementing the Program 
and is aware of the responsibilities involved in participation. The 
Agencies interpret section 327(b)(2) as providing the Secretary with 
sufficient authority to establish this as a requirement for the 
application process.
    One professional association commented on the requirement in 
paragraph 773.109(d), which states that the State should submit an 
application for multimodal projects as early as possible once the 
project is identified as a multimodal project. The commenter stated 
that the final rule should make clear that the States can request 
assignment for multimodal projects in general, not just on an 
individual basis. The professional association recommended removing or 
revising language that assumes that a State will identify a specific 
multimodal project during the application process.
    The Agencies considered these comments and decided to modify this 
requirement. The Agencies interpret the addition of multimodal projects 
in section 327 to mean that the State may retain the environmental 
review responsibilities of the assigning Agency even when a project 
becomes a multimodal project later during the project development 
process. The introduction of a multimodal element to a project does not 
automatically disqualify the project from assignment. The final rule 
now establishes a presumption that a State's request for assignment 
includes the environmental review responsibilities for those elements 
of a multimodal project that are within the purview of the assigning 
Agency. The Agencies would expect States to work with other Operating 
Administrations as appropriate (for example, establishing cooperating 
agency, lead agency, or joint lead agency relationships). Specifically, 
the Agencies have added a sentence in paragraph 773.105(b) and have 
modified paragraph 773.109(d) to establish this presumption. The 
provision allows States to opt-out of this presumption by affirmatively 
rejecting these responsibilities in the application. In these 
situations, the environmental review responsibilities would remain with 
the Operating Administration whenever a project becomes a multimodal 
project.
    The Agencies have also added a new paragraph 773.109(d)(1) that 
allows States to request assignment for discrete multimodal projects. 
This would be helpful, for example, in situations where a project is 
identified early in its project development process as a multimodal 
project and where the State is only interested in the environmental 
review responsibilities for that project or group of projects. In 
addition, the Agencies have introduced a new paragraph 773.109(d)(2) 
that allows States to pursue a limited assignment of multimodal 
environmental review responsibilities. This provision allows a State to 
request, at the same time it requests assignment from one Agency, the 
multimodal environmental review responsibilities from either of the 
other two Agencies. This would mean that, if successful, a State would 
get all the assignable responsibilities for a multimodal project 
without needing to apply at a later stage for the other Agencies' 
environmental review responsibilities. These changes address the 
requests for more flexibility when it comes to assignment of 
environmental review responsibilities with respect to multimodal 
projects.
    One State DOT noted that the application requirements for 
multimodal projects appear to suggest that separate applications would 
be required for each multimodal project, group of projects, or class of 
projects. The State DOT encouraged the Agencies to seek opportunities 
to increase consistency among Operating Administrations and align 
requirements and processes for multimodal projects so that States might 
handle the projects and potential assignment programs more efficiently. 
The State DOT was concerned that the highly variable nature of 
multimodal projects and the array of circumstances and requirements 
present would mean that States interested in assignment of multimodal 
projects would need to devote substantial resources in developing 
applications for different projects or classes of projects, and for 
maintaining and monitoring the associated programs.
    To address the commenter's concerns, the Agencies have decided to 
change the rule to establish a presumption that States requesting 
assignment of environmental review responsibilities for highway, 
railroad, or public transportation projects are also requesting those 
responsibilities for those components of multimodal projects. As a 
result, a State would not need to submit separate applications for 
environmental review responsibilities for those components of 
multimodal projects. The Agencies also have allowed for the possibility 
of State requests for environmental review responsibilities for 
discrete multimodal projects. This accommodates situations where a 
multimodal project is known at the outset and for situations where a 
State is only interested in environmental review responsibilities for 
multimodal projects and no other responsibilities. The Agencies, with 
the assistance of the Office of the Secretary of Transportation, will 
continue to seek opportunities to increase consistency in the 
environmental review process and align requirements and processes for 
multimodal projects so that States might handle the projects more 
efficiently.
    One professional association welcomed the provision allowing for 
electronic submissions and joint applications when applying for 
assignment from more than one DOT agency. The commenter opined that 
these provisions will promote efficiency in the application process, 
especially when a joint application is filed.
    The Agencies agree and revised paragraph 773.109(f) to establish 
that States should submit joint applications to FHWA instead of 
requiring submission to each Operating Administration. The FHWA will 
take the responsibility of circulating the joint application to the 
appropriate Agency for consideration and approval.

Section 773.111--Application Review and Approval

    Three State DOTs objected to the requirement in paragraph 
773.111(a) stating that the Agencies will provide a notice and comment 
opportunity for

[[Page 55393]]

their decision to assign the environmental review responsibilities to a 
State. One State DOT indicated that the requirement for both the State 
and the appropriate Agency to solicit public comment for the same 
application was unnecessary and redundant, and should be carried out 
concurrently. Another State DOT stated that the law only requires one 
episode of public involvement while the regulations require multiple 
episodes of public involvement. Another State DOT commented that the 
Agencies should eliminate the public involvement process required in 
paragraph 773.111(a) because the law does not require it. The commenter 
indicated that if the purpose of this requirement is to ensure the 
application gets noticed in the Federal Register, then the rule should 
require the State to provide a draft notice to the Agency for 
publication.
    The Agencies considered these comments and have decided to retain 
the requirement. The public involvement process for the appropriate 
Agency's decision to assign the environmental review responsibilities 
serves a different purpose than the public involvement process required 
for the State's application. In this instance the public involvement 
provides input to the Agencies on their decision to assign and the 
scope of the potential assignment. At this stage, the public is made 
aware of the content of the agreement and any special conditions or 
restrictions that the Agencies may be considering. The public is given 
a chance to influence the ultimate decision to allow the State to 
participate in the Program. The scope of public involvement is also 
broader because it would seek input at a national level instead of 
being limited to within the State. Finally, the notification process 
facilitates the requirement in section 327(b)(5) for the Secretary to 
solicit the views of Federal agencies before approving the application.
    One professional association commented that there was no reason to 
make it optional for the State to provide to the public its 
application, supporting materials, and a list of responsibilities 
sought by the State that the Operating Administration proposes to 
retain. The commenter indicated that this information must be made 
available if the public is going to have a fair opportunity to comment. 
The commenter recommended using the word ``must'' instead of ``may'' in 
the second sentence of paragraph 773.111(a). One State DOT objected to 
the inclusion of a draft MOU in the materials that would be made 
available for comment after the State has submitted its application. 
The State DOT indicated that making the Draft MOU available would be 
beyond the procedural requirements set by statute and are unnecessary 
from a public policy perspective given that the public would have had 
two opportunities to inspect the State's application. The State DOT 
indicated that the MOU is a legal document used to formalize the 
assignment that contains various certifications and commitments, and 
sets forth common understandings between the two agencies about how the 
Operating Administration will monitor the State. The State DOT stated 
that this is a binding agreement only on the respective parties and 
does not affect the rights or obligations of any private party. 
Therefore, the commenter argued, it is not the type of document that is 
normally circulated for public comment.
    The Agencies have decided to make the suggested change by the 
professional association in paragraph 773.111(a). With respect to the 
draft MOU, the Agencies agree with the State DOT that the MOU would 
contain various certifications and commitments, and set forth common 
understandings between the two agencies about how the Operating 
Administration will monitor the State. The MOU would discuss the 
expectations and conditions for Program participation. The Agencies 
believe that these reasons support the disclosure of the MOU in its 
draft form to seek input from interested parties on the terms and 
conditions proposed. This has been the practice that FHWA has followed 
successfully in its implementation of the 23 U.S.C. 326 assignment 
program for highway projects that qualify for categorical exclusions. 
The Agencies have also substituted the phrase ``any additional 
supporting materials'' with ``a draft of the MOU'' to indicate that the 
Agency will provide a draft of the agreement for public review.
    One State DOT requested information on which branch or office of 
the Operating Administration will grant application approval.
    The NPRM did not specify that the Administrator of the appropriate 
agency would approve each application. The Agencies have added 
paragraph 773.111(c) to clarify that the Administrator is responsible 
for approving and executing the MOU on behalf of the appropriate Agency

Section 773.113--Application Amendments

    One State DOT objected to the requirement of two separate public 
comment periods for amendments: one under the State public notice laws 
and one by the Federal agency. The commenter indicated that the rule 
should not require the second Federal public comment period. The 
commenter also stated that the notice and solicitation of public 
comment should be limited to amendments that substantially change the 
scope or nature of the application.
    The Agencies considered these comments and modified the provision 
to require public comment if the amendment makes substantial changes to 
the original application. This change recognizes that there may be 
amendments that do not trigger the need for notification and invitation 
for public comment. The regulation makes clear that the Agencies are 
the final decisionmaker on whether the amendment is a substantial 
change that triggers the need for additional public comment. The 
Agencies also are the final decisionmakers on whether one or two public 
involvement opportunities are needed--one for the amended application 
and one for the Agencies' decision to approve the amended application. 
If the appropriate Agency determines that a notice and request for 
public comment through the State process is needed in the same fashion 
as paragraph 773.107(b), then the Agency will expect the State to 
provide the comments submitted and identify the changes made to the 
application in response to the comments.
    One State DOT expressed concern with the requirement in paragraph 
773.113(b) that a State cannot amend an application earlier than 1 year 
after the execution of the MOU. The commenter indicated that some 
amendments may take longer to implement than others.
    The Agencies considered this comment and decided to eliminate the 
1-year restriction. The purpose of the wait period after the execution 
of the MOU was to avoid situations where a State requests significant 
changes shortly after the execution of the MOU. These situations have 
the potential to confuse the public and resource agencies on which 
entity is responsible for the environmental review of a project. 
Although the Agencies believe that this caution remains valid, they do 
not believe that the regulation needs to prescribe a particular 
timeframe (like one year as proposed in the NPRM). There may be 
situations where amendments could be warranted in the first year. The 
Agencies determined that they have sufficient discretion to take these 
concerns into account when considering requests for amendments. 
Communication between the appropriate Operating Administration(s) and 
the State will assist in determining

[[Page 55394]]

whether the Operating Administration(s) should process the amendment or 
whether more time is needed prior to pursuing the amendment. The 
Agencies have added a new paragraph 773.113(b)(3) to clarify that the 
Operating Administration has the discretion to accept or reject the 
amendment and to modify the MOU if needed.
    The Agencies have made further changes in paragraph 773.113(b) to 
clarify that post-MOU amendments could occur in situations where a 
renewal MOU exists. The Agencies will handle such requests in the same 
manner as post-MOU amendment requests.

Section 773.115--Renewals

    One State DOT indicated that the rule lacked provisions for 
performance evaluation when considering renewal requests and objected 
to the requirements that were tantamount to a reapplication process 
because they would be time-consuming. The commenter suggested the 
renewal process be based on a determination by the Secretary that the 
State has satisfactorily carried out the provisions of the existing MOU 
and that is supported by the audit and monitoring reviews required as 
part of the MOU implementation.
    After considering these comments the Agencies have made various 
changes to the renewal application process. First, the application to 
renew an MOU is now the ``renewal package.'' Second, the Agencies have 
switched paragraphs 773.115(b) and 773.115(d) as they were proposed in 
the NPRM. Paragraph 773.115(b) now discusses the need for public notice 
and comment on the renewal package. Paragraph 773.115(d) now discusses 
the 180-day time limit for the submittal of renewal packages. Third, 
the Agencies have modified the requirement for public notice and 
comment on the renewal package. Paragraph 773.115(b) indicates that 
after discussing with the State any changes that have occurred since 
the original application, the appropriate Operating Administration will 
decide whether to require a statewide public notice and comment before 
submission of the renewal package in addition to the Federal Register 
public notice and comment period on the Operating Administration's 
decision to approve the renewal. Fourth, in paragraph 773.115(c), the 
Agencies also have made changes to the information required in the 
renewal package. The final rule now establishes that the renewal 
package must include up-to-date certifications required in paragraphs 
773.109(a)(6)-(7) if they are needed and the Governor's signature is on 
the renewal package. Up-to-date certifications may be needed if there 
have been changes in State laws affecting these certifications or if 
the necessary State laws have ``sunset'' termination dates that would 
occur before the end of a renewal period. States must also describe any 
changes that have occurred since the initial application. If the 
Operating Administration requires an opportunity for public comment 
prior to the submission of the renewal package, the State must provide 
the comments submitted and responses to substantive comments, and note 
any changes the State has made in response to the comments. Thus, this 
process now focuses on the changes that have occurred since the 
original application instead of requiring re-application. Finally, the 
Agencies have added paragraph 773.115(g) to clarify that the approval 
decision will take into account the audit and monitoring reports and 
the State's overall performance in the Program.
    One State DOT objected to the requirement in paragraphs 773.115(a)-
(b) for the State to notify the appropriate Agency twelve months before 
expiration of the MOU and for the submittal of the application 180 days 
prior to the MOU expiration. The State DOT indicated that this exceeded 
legal requirements and would add unnecessary time and costs.
    Section 327(b)(2) gives the Secretary the authority to establish 
the requirements for the Program's application process, including the 
renewal process. The timeframe provided is important to ensure adequate 
planning by both the Operating Administration and the State. The 
Operating Administration must plan for adequate resources and dedicated 
time to ensure a smooth transition. The Agencies believe that this is 
an appropriate timeframe based on FHWA's experience with the pilot 
program.
    One State DOT indicated that Federal law does not require the items 
for the MOU renewal application listed in paragraphs 773.115(c)(1)-(4).
    The Agencies have made several changes to the information required 
for renewal packages. The Agencies note that section 327(b)(2) gives 
the Secretary the authority to establish the requirements for the 
Program's application process, including the renewal process.
    One State DOT objected to the requirement in paragraph 
773.115(c)(4) of having the Governor sign the renewal application. The 
commenter recommended the rule allow the head of the State agency 
having primary jurisdiction over highway matters to sign the Program 
renewal application.
    The Agencies agree that the head of the State agency having primary 
jurisdiction over highway matters could sign the Program renewal 
package since this officer is allowed by section 327(c)(1) to execute 
the MOU. This allowance, however, is limited to Program participation 
with regard to highway projects.
    One State DOT objected to the requirement of two separate public 
comment periods for renewals: One under the State public notice laws 
and one by the Federal agency. The commenter indicated that the rule 
should not require the second Federal public comment period.
    The Agencies considered this comment and modified the provision to 
allow for statewide notification and public comment if significant 
changes have occurred compared to the previous application or if 
renewal proposes the assumption of new responsibilities. This change 
recognizes that there may be renewals that do not trigger the need for 
two notice and comment procedures. The regulation makes clear that the 
Agencies are the final decisionmaker on whether the renewal triggers 
the need for a statewide notice and public comment period prior to the 
State's submittal. If the appropriate Agency determines that a notice 
and request for public comment through the State process is needed in 
the same fashion as paragraph 773.107(b), then the Agency will expect 
the State to provide the comments submitted and identify the changes 
made to the application in response to the comments.
    One State DOT expressed support for the provision that allows 
continuance of the Program in cases where there are delays in the 
execution of the renewal of the MOU.
    The Agencies appreciate the comment and are not making any changes 
to this section.

Section 773.117--Termination

    Two State DOTs and one public interest group commented on the lack 
of information on the circumstances, restrictions, and criteria for 
termination. One State DOT indicated that the rule should specify the 
restrictions on both the Secretary's and the State's abilities to 
terminate, or the Agencies should omit the provision from the 
rulemaking altogether. The public interest group supported not 
including specific criteria, but indicated that the rule should make 
clear that, at a minimum, termination will be required if any of

[[Page 55395]]

the conditions set out in the application process are no longer being 
met.
    The Agencies considered these comments and decided to make changes 
to the section to address them. Section 773.117 is now divided into 
four subsections. The first, paragraph 773.117(a), discusses 
termination by the Operating Administration. The paragraph specifies 
that the Operating Administration that granted the assignment may 
terminate the State's participation if it determines that the State is 
not adequately carrying out the responsibilities assigned to the State. 
It includes examples of situations where the Operating Administration 
may make this finding including persistent neglect of, or noncompliance 
with, any Federal laws, regulations, and policies; failure to address 
deficiencies identified during the audit or monitoring process; failure 
to secure or maintain adequate personnel and financial resources to 
carry out the responsibilities assumed; intentional noncompliance with 
the terms of one or more MOU(s); and persistent failure to adequately 
consult, coordinate, and/or take the concerns of other Operating 
Administrations, Federal agencies, and resource agencies into account 
in carrying out the responsibilities assumed. This list is 
illustrative; it is not meant to be all-inclusive. Paragraph (a)(1) 
establishes that the auditing and monitoring reports may be sources for 
this finding, and that the Operating Administration is not bound only 
to these sources of information. Paragraph (a)(2) restates the 
requirement in 23 U.S.C. 327(j)(B) that the Operating Administration 
must provide notice and an opportunity for corrective action before 
terminating the State's participation. The paragraph also emphasizes 
that the Operating Administration is the entity that determines whether 
the corrective actions taken by the State were satisfactory, as 
established in section 327(j)(1)(C) of title 23 U.S.C.
    New paragraph (b) provides the termination procedures when a State 
initiates termination. The regulation closely follows the requirements 
in 23 U.S.C. 327(j)(2) for those situations. The statute provides that 
the Secretary may establish terms and conditions for these types of 
termination requests. Based on this authority, the Agencies have 
established a requirement for the inclusion of a draft transition plan 
with the notification, and for the agreement and approval of a final 
transition plan before termination takes effect. The MOUs may establish 
additional terms and conditions for these types of termination 
requests. Paragraphs (b)(1)-(5) establish the information that States 
must include in transition plans. Paragraph (b)(5) indicates that the 
appropriate Operating Administration may request additional information 
that paragraphs (b)(1)-(4) have not identified.
    New paragraph (c) establishes procedures for termination by mutual 
agreement. The statute is silent on these types of termination, and the 
Agencies believe that there is sufficient discretion to establish 
procedures for these types of termination situations. In these 
situations, the State and the Operating Administration may agree on a 
particular date or timeframe for termination prior to the expiration of 
the MOU. For example, this could occur when after several years of 
State participation both parties decide that it is in their best 
interest to terminate the State's participation. A precondition of this 
type of termination is the agreement and approval by both parties of a 
transition plan that contains the same information as required in 
paragraphs (b)(1)-(5).
    Finally, new paragraph (c) discusses the effect of termination of 
the State's participation with regard to highway projects on railroad, 
public transportation, or multimodal-related assignments, if they have 
been granted under the Program. Section 327(a)(2)(B) establishes that 
assignment of the Secretary's environmental review responsibilities 
with respect to highway projects is a precondition of assignment of 
environmental review responsibilities with respect to railroad, public 
transportation, and multimodal projects. Consequently, if assignment 
with respect to highway projects is terminated, assignment with respect 
to railroad, public transportation, and/or multimodal projects must 
also be terminated.
    One public interest group and one professional association 
requested a provision allowing the public to petition the Agencies to 
withdraw assigned responsibilities. The professional association was 
particularly concerned that States would fail to adhere strictly to the 
NEPA requirements and offered the following new paragraph (b): ``Any 
person may petition FHWA, FRA, or FTA for termination of the 
Secretary's assignment of responsibilities to a State by petitioning 
the FHWA, FRA, or FTA Administrator. The application must set forth the 
reasons termination is sought.'' The public interest group indicated 
that allowing third party petitions for termination would allow these 
third parties to monitor the success of the Program and would assist in 
the conservation of Federal resources. The commenter also indicated 
that this would create an opportunity for those individuals and 
organizations on the ground, closest to the administration of the 
program, to have a role in its oversight.
    The Agencies have considered these comments and have decided not to 
create a third-party petition process. The law does not establish a 
process for third-parties (other than recipients of chapter 53 funding) 
to petition or object to an assignment decision. However, the Agencies 
believe that any information from third parties on the adequacy of 
approving assignment or renewal, or on the performance of a State, are 
important factors in the Operating Administration's decisionmaking and 
oversight process with regard to this Program. The Agencies encourage 
third parties and the public to use the opportunities for public 
involvement that will be available throughout the application, 
auditing, and renewal processes to express their views on these matters 
with regard to the particular State.

Statutory/Legal Authority for This Rulemaking

    The Agencies derive explicit authority for this rulemaking action 
from 23 U.S.C. 327(b)(2), which states that ``the Secretary shall 
amend, as appropriate, regulations that establish requirements relating 
to information required to be contained in any application of a State 
to participate in the program.'' In addition, 49 U.S.C. 322 provides 
authority to ``[a]n officer of the Department of Transportation [to] 
prescribe regulations to carry out the duties and powers of the 
officer.'' The Secretary delegated this authority to the Agencies in 49 
CFR 1.81(a)(3), which provides that the authority to prescribe 
regulations contained in 49 U.S.C. 322 is delegated to each 
Administrator ``with respect to statutory provisions for which 
authority is delegated by other sections in [49 CFR Part 1].'' Included 
in 49 CFR Part 1, specifically 49 CFR 1.81(a)(4)-(6), is the delegation 
of authority with respect to the Secretary's environmental review 
requirements.

Rulemaking Analyses and Notices

    The Agencies considered all comments received before the close of 
business on the comment closing date indicated above, and the comments 
are available for examination in the docket (FHWA-2013-0022) at 
Regulations.gov. The Agencies also considered comments received after 
the comment closing date and filed in the docket prior to this final 
rule.

[[Page 55396]]

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

    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). The 
Agencies have determined that this action is not a significant 
regulatory action under section 3(f) of Executive Order 12866 and is 
not significant within the meaning of Department of Transportation's 
regulatory policies and procedures (44 FR 11034, Feb. 2, 1979).
    The changes to this rule are not anticipated to adversely affect, 
in a material way, any sector of the economy. This final rule sets 
forth application requirements for the Program, which will result in 
only minimal costs to program applicants. In addition, these changes 
would not interfere with any action taken or planned by another agency 
and would not materially alter the budgetary impact of any 
entitlements, grants, user fees, or loan programs. Consequently, a full 
regulatory evaluation is not required.

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et 
seq.), the Agencies must consider whether this final rule would have a 
significant economic impact on a substantial number of small entities. 
``Small entities'' include small businesses, not for-profit 
organizations that are independently owned and operated and are not 
dominant in their fields, and governmental jurisdictions with 
populations under 50,000. States are not included in the definition of 
small entity set forth in 5 U.S.C. 601. The final rule addresses 
application requirements for States wishing to participate in the 
Program. Therefore, the Regulatory Flexibility Act does not apply, and 
the Agencies certify that this action would not have significant 
economic impact on a substantial number of small entities.

Unfunded Mandates Reform Act of 1995

    This final rule would not impose unfunded mandates as defined by 
the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48). 
This final rule will not result in the expenditure by State, local, and 
tribal governments, in the aggregate, or by the private sector, of 
$148.1 million or more in any 1 year (2 U.S.C. 1532).

Executive Order 13132 (Federalism Assessment)

    Executive Order 13132 requires agencies to ensure meaningful and 
timely input by State and local officials in the development of 
regulatory policies that may have a substantial, direct effect on the 
States, on the relationship between the Federal Government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. The Agencies have analyzed this final 
rule in accordance with the principles and criteria contained in 
Executive Order 13132 and determined that this action will not have 
Federalism implications as described by the Executive Order. The 
Agencies have also determined that this action would not preempt any 
State law or State regulation or affect any States' ability to 
discharge traditional State governmental functions.
    Under the Program, a State may voluntarily assume the 
responsibilities of the Secretary for implementation of NEPA for one or 
more highway projects, and one or more railroad, public transportation, 
or multimodal projects. Upon a State's voluntary assumption of NEPA 
responsibilities, a State also may assume all or part of the 
Secretary's responsibilities for environmental review, consultation, or 
other action required under any Federal environmental law pertaining to 
the review or approval of highway, public transportation, railroad, or 
multimodal projects. It is expected that a State would choose to assume 
these Federal agency responsibilities in those cases where the State 
believes that such an action would enable the State to streamline 
project development and construction. The assumption of these Federal 
agency responsibilities would not preempt any State law or State 
regulation or affect any States' ability to discharge traditional State 
governmental functions. Any federalism implications arising from the 
States' assumption of Federal agency responsibilities are attributable 
to 23 U.S.C. 327. Any change in the relative role of the State is 
consistent with section 2(a) and 3(c) of Executive Order 13132 because 
the Federal Government is granting to the States the maximum 
administrative discretion possible.
    The NPRM invited State and local governments with an interest in 
this rulemaking to comment on the effect that adoption of specific 
proposals may have on State or local governments. No State or local 
governments provided comments on this issue.

Executive Order 13175 (Tribal Consultation)

    Executive Order 13175 requires agencies to ensure meaningful and 
timely input from Indian tribal government representatives in the 
development of rules that ``significantly or uniquely affect'' Indian 
communities and that impose ``substantial and direct compliance costs'' 
on such communities. The Agencies have analyzed this action under 
Executive Order 13175 and believe that the action would not have 
substantial direct effects on one or more Indian tribes; would not 
impose substantial direct compliance costs on tribal governments; and 
would not preempt tribal law. The final rule addresses application 
requirements for the Program and would not impose any direct compliance 
requirements on tribal governments. Therefore, a tribal summary impact 
statement is not required. The Agencies received no comment in response 
to our request in the NPRM for comments from Indian tribal governments 
on the effect that adoption of this specific proposal might have on 
Indian communities.

Executive Order 13211 (Energy Effects)

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

Executive Order 12372 (Intergovernmental Review)

    The DOT's regulations implementing Executive Order 12372 (49 CFR 
part 17) applied to this action, and the Agencies followed them in 
developing this final rule.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et 
seq.), Federal agencies must obtain approval from the Office of 
Management and Budget (OMB) for collections of information they 
conduct, sponsor, or require through regulations. The PRA applies to 
Federal agencies' collections of information imposed on ten or more 
persons. ``Persons'' include a State, territorial, tribal, or local 
government, or branch thereof, or their political subdivisions. In this 
regulation, the

[[Page 55397]]

Agencies consider the State to be the applicant/person for all types of 
projects covered by this regulation. A State with multiple applications 
would count as one person for purposes of the Agencies' PRA analysis.
    The Agencies have determined that the number of States interested 
in the Program is very small. During FHWA's implementation of the Pilot 
Program in the past 7 years, only one State, California, indicated any 
interest and applied to participate in the Program. The FHWA twice 
surveyed the remaining States for any additional interest in 
participation and received no expressed interest. The Agencies are 
aware of only one additional State that has initiated legislative 
action to facilitate its potential application for this Program.
    Based on this information, the Agencies' anticipate fewer than 10 
States requesting to participate in the Program. The Agencies will 
initiate the clearance process for OMB's approval to collect 
information if they receive applications from nine States. The Agencies 
will contact OMB to initiate that process at that time.

Executive Order 12988 (Civil Justice Reform)

    This action meets applicable standards in sections 3(a) and 3(b)(2) 
of Executive Order 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.

Executive Order 12898 (Environmental Justice)

    Executive Order 12898, Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations, and DOT 
Order 5610.2(a) (the DOT Order), 91 FR 27534, May 10, 2012 (available 
at www.fhwa.dot.gov/environment/environmentaljustice/
ejatdot/order56102a/index.cfm), require DOT 
agencies to achieve environmental justice (EJ) as part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects, including 
interrelated social and economic effects, of their programs, policies, 
and activities on minority populations and low-income populations in 
the United States. The DOT Order requires DOT agencies to address 
compliance with Executive Order 12898 and the DOT Order in all 
rulemaking activities. In addition, FHWA and FTA have issued additional 
documents relating to administration of Executive Order 12898 and the 
DOT Order. On June 14, 2012, FHWA issued an update to its EJ order, 
FHWA Order 6640.23A, FHWA Actions to Address Environmental Justice in 
Minority Populations and Low Income Populations (the FHWA Order) 
(available at www.fhwa.dot.gov/legsregs/directives/orders/664023a.htm). 
The FTA also issued an update to its EJ policy, FTA Policy Guidance for 
Federal Transit Recipients, (the FTA Circular) 77 FR 42077, July 17, 
2012 (available at www.fta.dot.gov/legislationlaw/
1234914740.html).
    The Agencies have evaluated this final rule under the Executive 
Order, the DOT Order, the FHWA Order, and the FTA Circular. The 
Agencies have determined that the proposed application regulations 
would not cause disproportionately high and adverse human health and 
environmental effects on minority or low income populations. States 
assuming NEPA responsibilities and Executive Order 12898 
responsibilities must comply with the Department's and the appropriate 
Operating Administrations' guidance and policies on environmental 
justice and title VI of the Civil Rights Act of 1964.

Executive Order 13045 (Protection of Children)

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

Executive Order 12630 (Taking of Private Property)

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

National Environmental Policy Act

    Agencies must adopt implementing procedures for NEPA that establish 
specific criteria for, and identification of, three classes of actions: 
those that normally require preparation of an EIS; those that normally 
require preparation of an EA; and those that are categorically excluded 
from further NEPA review (40 CFR 1507.3(b)). This action qualifies for 
CEs under 23 CFR 771.117(c)(20) (promulgation of rules, regulations, 
and directives) and 771.117(c)(1) (activities that do not lead directly 
to construction) for FHWA, and 23 CFR 771.118(c)(4) (planning and 
administrative activities that do not involve or lead directly to 
construction) for FTA. In addition, FRA has determined that this action 
is not a major FRA action requiring the preparation of an EIS or EA 
under FRA's Procedures for Considering Environmental Impacts (64 FR 
28545, May 26, 1999 as amended by 78 FR 2713, Jan. 14, 2013). The 
Agencies have evaluated whether the action would involve unusual 
circumstances or extraordinary circumstances and have determined that 
this action would not involve such circumstances.
    Under the Program, a selected State may voluntarily assume the 
responsibilities of the Secretary for implementation of NEPA for one or 
more highway projects, and one or more railroad, public transportation, 
or multimodal projects. Upon a State's voluntary assumption of NEPA 
responsibilities, that State also may choose to be assigned all or part 
of the Secretary's responsibilities for environmental review, 
consultation, or other action required under any Federal environmental 
law pertaining to the review or approval of highway, public 
transportation, railroad, or multimodal projects. A State must follow 
the DOT's and the appropriate Agency's regulations, policies, and 
guidance with respect to NEPA and the assumed environmental law 
responsibilities. As a result, the Agencies find that this rule will 
not result in significant impacts on the human environment.

Regulation Identification Number

    A regulation identification number (RIN) is assigned to each 
regulatory action listed in the Unified Agenda of Federal Regulations. 
The Regulatory Information Service Center publishes the Unified Agenda 
in April and October of each year. The RIN contained in the heading of 
this document can be used to cross reference this action with the 
Unified Agenda.

List of Subjects

23 CFR Part 773

    Environmental protection, Highways and roads.

49 CFR Part 264

    Environmental protection, Railroads.

49 CFR Part 622

    Environmental protection, Grant programs--transportation, Public 
transit, Recreational areas, Reporting and recordkeeping requirements.

    For the reasons discussed in the preamble, the Agencies amend 23 
CFR chapter I and 49 CFR chapters II and VI as follows:

[[Page 55398]]

Title 23

0
1. Revise part 773 to read as follows:

PART 773--SURFACE TRANSPORTATION PROJECT DELIVERY PROGRAM 
APPLICATION REQUIREMENTS AND TERMINATION

Sec.
773.101 Purpose.
773.103 Definitions.
773.105 Eligibility.
773.107 Pre-application requirements.
773.109 Application requirements.
773.111 Application review and approval.
773.113 Application amendments.
773.115 Renewals.
773.117 Termination.
Appendix A to Part 773--Example List of the Secretary's 
Environmental Review Responsibilities That May Be Assigned Under 23 
U.S.C. 327.

    Authority:  23 U.S.C. 315 and 327; 49 CFR 1.81(a)(4)-(6); 49 CFR 
1.85


Sec.  773.101  Purpose.

    The purpose of this part is to establish the requirements for an 
application by a State to participate in the Surface Transportation 
Project Delivery Program (Program). The Program allows, under certain 
circumstances, the Secretary to assign and a State to assume the 
responsibilities under the National Environmental Policy Act of 1969 
(NEPA) and for environmental review, consultation, or other action 
required under certain Federal environmental laws with respect to one 
or more highway, railroad, public transportation, or multimodal 
projects within the State.


Sec.  773.103  Definitions.

    Unless otherwise specified in this part, the definitions in 23 
U.S.C. 101(a) and 49 U.S.C., are applicable to this part. As used in 
this part:
    Classes of projects means either a defined group of projects or all 
projects to which Federal environmental laws apply.
    Federal environmental law means any Federal law, regulation, or 
Executive Order (E.O.) under which the Secretary of the U.S. Department 
of Transportation (DOT) has responsibilities for environmental review, 
consultation, or other action with respect to the review or approval of 
a highway, railroad, public transportation, or multimodal project. The 
Federal environmental laws for which a State may assume the 
responsibilities of the Secretary under this Program include the list 
of laws contained in Appendix A to this part.
    Highway project means any undertaking that is eligible for 
financial assistance under title 23 U.S.C. and for which the Federal 
Highway Administration has primary responsibility. A highway project 
may include an undertaking that involves a series of contracts or 
phases, such as a corridor, and also may include anything that may be 
constructed in connection with a highway, bridge, or tunnel. The term 
highway project does not include any project authorized under 23 U.S.C. 
202, 203, or 204 unless the State will design and construct the 
project.
    MOU means a Memorandum of Understanding, a written agreement that 
complies with 23 U.S.C. 327(b)(4)(C) and (c), and this part.
    NEPA means the National Environmental Policy Act of 1969 (42 U.S.C. 
4321 et seq.).
    Operating Administration means any agency established within the 
DOT, including the Federal Aviation Administration, Federal Highway 
Administration (FHWA), Federal Motor Carrier Safety Administration, 
Federal Railroad Administration (FRA), Federal Transit Administration 
(FTA), Maritime Administration, National Highway Traffic Safety 
Administration, Office of the Secretary of Transportation, Pipeline and 
Hazardous Materials Safety Administration, and Saint Lawrence Seaway 
Development Corporation.
    Program means the ``Surface Transportation Project Delivery 
Program'' established under 23 U.S.C. 327.
    Public transportation project means a capital project or operating 
assistance for ``public transportation,'' as defined in chapter 53 of 
title 49 U.S.C.
    Railroad project means any undertaking eligible for financial 
assistance from FRA to construct (including initial construction, 
reconstruction, replacement, rehabilitation, restoration, or other 
improvements) a railroad, as that term is defined in 49 U.S.C. 20102, 
including: environmental mitigation activities; an undertaking that 
involves a series of contracts or phases, such as a railroad corridor; 
and anything that may be constructed in connection with a railroad. The 
term railroad project does not include any undertaking in which FRA 
provides financial assistance to Amtrak or private entities.
    State means any agency under the direct jurisdiction of the 
Governor of any of the 50 States or Puerto Rico, or the mayor in the 
District of Columbia, which is responsible for implementing highway, 
public transportation, or railroad projects eligible for assignment. 
The term ``State'' does not include agencies of local governments, 
transit authorities or commissions under their own board of directors, 
or State-owned corporations.


Sec.  773.105  Eligibility.

    (a) Applicants. A State must comply with the following conditions 
to be eligible and to retain eligibility for the Program.
    (1) For highway projects:
    (i) The State must act by and through the State Department of 
Transportation (State DOT) established and maintained in conformity 
with 23 U.S.C. 302 and 23 CFR 1.3;
    (ii) The State expressly consents to accept the jurisdiction of the 
Federal courts for compliance, discharge, and enforcement of any 
responsibility assumed by the State;
    (iii) The State has laws in effect that authorize the State to take 
the actions necessary to carry out the responsibilities it is assuming;
    (iv) The State has laws in effect that are comparable to the 
Freedom of Information Act (FOIA) (5 U.S.C. 552), including laws 
providing that any decision regarding the public availability of a 
document under those State laws is reviewable by a court of competent 
jurisdiction; and
    (v) The State has the financial and personnel resources necessary 
to carry out the responsibilities it is assuming.
    (2) For railroad or public transportation projects:
    (i) The State must comply with paragraphs (a)(1)(ii) through (v) of 
this section; and
    (ii) The State must have assumed the responsibilities of the 
Secretary under this part with respect to one or more highway projects.
    (b) Responsibilities. Responsibilities eligible for Program 
assignment and State assumption include all NEPA responsibilities and 
all or part of the reviews, consultations, and other actions required 
under other environmental laws, regulations, and E.O.s. Appendix A to 
this part contains an example list of other environmental laws, 
regulations, and E.O.s that may be assigned to and assumed by the 
State. These may include the environmental review responsibilities for 
the elements of a multimodal project that are within an applicable 
Operating Administration's jurisdiction. The following responsibilities 
are ineligible for Program assignment and State assumption:
    (1) Conformity determinations required under section 176 of the 
Clean Air Act (42 U.S.C. 7506);
    (2) The Secretary's responsibilities under 23 U.S.C. 134 and 135;
    (3) The Secretary's responsibilities under 49 U.S.C. 5303 and 5304;
    (4) The Secretary's responsibilities for government-to-government 
consultation with Indian tribes;

[[Page 55399]]

    (5) The Secretary's responsibilities for approvals that are not 
considered to be part of the environmental review of a project, such as 
project approvals, Interstate access approvals, and safety approvals; 
and
    (6) The Secretary's responsibilities under NEPA and for reviews, 
consultations, and other actions required under other Federal 
environmental laws for actions of Operating Administrations other than 
FHWA, FRA, and FTA.
    (c) Projects. Environmental reviews ineligible for assignment and 
State assumption under the Program include reviews for the following 
types of projects:
    (1) Projects that cross State boundaries, and
    (2) Projects adjacent to or that cross international boundaries.
    (d) Discretion retained. Nothing in this section limits an 
Operating Administration's discretion to withhold approval of 
assignment of eligible responsibilities or projects under this Program.


Sec.  773.107  Pre-application requirements.

    (a) Coordination meeting. The State must request and participate in 
a pre-application coordination meeting with the appropriate Division or 
Regional, and Headquarters office of the applicable Operating 
Administration(s) before soliciting public comment on its application.
    (b) Public comment. The State must give notice of its intention to 
participate in the Program and must solicit public comment by 
publishing the complete application in accordance with the appropriate 
State public notice laws not later than 30 days prior to submitting its 
application to the appropriate Operating Administration(s). If allowed 
under State law, publishing a statewide notice of availability of the 
application rather than the application itself may satisfy the 
requirements of this provision so long as the complete application is 
made available on the internet and is reasonably available to the 
public for inspection. Solicitation of public comment must include 
solicitation of the views of other State agencies, tribal agencies, and 
Federal agencies that may have consultation or approval 
responsibilities associated with the project(s) within State 
boundaries.
    (1) The State requesting FTA's responsibilities with respect to 
public transportation projects must identify and solicit public comment 
from potential recipients of assistance under chapter 53 of title 49 
U.S.C. These comments may include requests for the Secretary to 
maintain the environmental review responsibilities with respect to one 
or more public transportation projects.
    (2) The State must submit copies of all comments received as a 
result of the publication of the respective application(s). The State 
must summarize the comments received, develop responses to substantive 
comments, and note any revisions or actions taken in response to the 
public comment.
    (c) Sovereign immunity waiver. The State must identify and complete 
the process required by State law for consenting and accepting 
exclusive Federal court jurisdiction with respect to compliance, 
discharge, and enforcement of any of the responsibilities being sought.
    (d) Comparable State laws. The State must determine that it has 
laws that are in effect that authorize the State to take actions 
necessary to carry out the responsibilities the State is seeking and a 
public records access law that is comparable to FOIA. The State must 
ensure that it cures any deficiency in applicable State laws before 
submitting its application.


Sec.  773.109  Application requirements.

    (a) Highway project responsibilities. An eligible State DOT may 
submit an application to FHWA to participate in the Program for one or 
more highway projects or classes of highway projects. The application 
must include:
    (1) The highway projects or classes of highway projects for which 
the State is requesting assumption of Federal environmental review 
responsibilities under NEPA. The State must specifically identify in 
its application each highway project for which a draft environmental 
impact statement has been issued and for which a final environmental 
impact statement is pending, prior to the submission of its 
application;
    (2) Each Federal environmental law, review, consultation, or other 
environmental responsibility the State seeks to assume under this 
Program. The State must indicate whether it proposes to phase-in the 
assumption of these responsibilities, i.e. initially assuming only some 
responsibilities with a plan to assume additional responsibilities at 
specific future times;
    (3) For each responsibility requested in paragraphs (a)(1) and (2) 
of this section, the State must describe how it intends to carry out 
these responsibilities. Such description must include:
    (i) A summary of State procedures currently in place to guide the 
development of documents, analyses, and consultations required to 
fulfill the environmental review responsibilities requested. For States 
that have comparable State environmental review procedures, the 
discussion should describe the differences, if any, between the State 
environmental review process and the Federal environmental review 
process, focusing on any standard that is mandated by State law, 
regulation, executive order, or policy that is not applicable to the 
Federal environmental review. The State must submit a copy of the 
procedures with the application unless these are available 
electronically. The State may submit the procedures electronically, 
either through email or by providing a hyperlink;
    (ii) Any changes that the State has made or will make in the 
management of its environmental program to provide the additional staff 
and training necessary for quality control and assurance, appropriate 
levels of analysis, adequate expertise in areas where the State is 
requesting responsibilities, and expertise in management of the NEPA 
process and reviews under other Federal environmental laws;
    (iii) A discussion of how the State will conduct legal reviews for 
the environmental documents it produces, including legal sufficiency 
reviews where required by law, policy, or guidance;
    (iv) A discussion of how the State will identify and address those 
projects that without assignment would have required FHWA Headquarters' 
prior concurrence of the final environmental impact statement under 23 
CFR 771.125(c); and
    (v) A discussion of otherwise permissible project delivery methods 
the State intends to pursue, and the process it will use to decide 
whether pursuing those project delivery methods and being responsible 
for the environmental review meet the objectivity and integrity 
requirements of NEPA.
    (4) A verification of the personnel necessary to carry out the 
authority that the State may assume under the Program. The verification 
must contain the following information:
    (i) A description of the staff positions, including management, 
that will be dedicated to fulfilling the additional functions needed to 
perform the assigned responsibilities;
    (ii) A description of any changes to the State's organizational 
structure that would be necessary to provide for efficient 
administration of the responsibilities assumed; and
    (iii) A discussion of personnel needs that may be met by the 
State's use of

[[Page 55400]]

outside consultants, including legal counsel provided by the State 
Attorney General or private counsel;
    (5) A summary of the anticipated financial resources available to 
meet the activities and staffing needs identified in paragraphs (a)(3) 
and (4) of this section, and a commitment to make adequate financial 
resources available to meet these needs;
    (6) Certification and explanation by the State's Attorney General, 
or other State official legally empowered by State law to issue legal 
opinions that bind the State, that the State has legal authority to 
assume the responsibilities of the Secretary for the Federal 
environmental laws and projects requested, and that the State consents 
to exclusive Federal court jurisdiction with respect to the 
responsibilities the State is requesting to assume. Such consent must 
be broad enough to include future changes in relevant Federal policies 
and procedures or allow for its amendment to include such future 
changes;
    (7) Certification by the State's Attorney General, or other State 
official legally empowered by State law to issue legal opinions that 
bind the State, that the State has laws that are comparable to FOIA, 
including laws that allow for any decision regarding the public 
availability of a document under those laws to be reviewed by a court 
of competent jurisdiction;
    (8) Evidence that the required notice and solicitation of public 
comment by the State relating to participation in the Program has taken 
place and copies of the State's responses to the comments;
    (9) A point of contact for questions regarding the application and 
a point of contact regarding the implementation of the Program (if 
different); and
    (10) The State Governor's (or in the case of District of Columbia, 
the Mayor's) signature approving the application. For the Secretary's 
responsibilities with respect to highway projects, the top ranking 
transportation official in the State who is charged with responsibility 
for highway construction may sign the application instead of the 
Governor.
    (b) Public transportation project responsibilities. An eligible 
State may submit an application to FTA to participate in the Program 
for one or more public transportation projects or classes of public 
transportation projects. The application must provide the information 
required by paragraphs (a)(1) through (10) of this section, but with 
respect to FTA's program and the public transportation project(s) at 
issue. In addition, the application must include:
    (1) Evidence that FHWA has assigned to the State, or the State has 
requested assignment of the responsibilities of, FHWA with respect to 
one or more highway projects within the State under NEPA; and
    (2) Evidence that any potential recipients of assistance under 
chapter 53 of title 49 U.S.C. for any public transportation project or 
classes of public transportation projects in the State being sought for 
Program assignment have received written notice of the application with 
adequate time to provide comments on the application.
    (c) Railroad project responsibilities. An eligible State may submit 
an application to FRA to participate in the Program for one or more 
railroad projects or classes of railroad projects. The application must 
provide the information required by paragraphs (a)(1) through (10) of 
this section, but with respect to the railroad project(s) at issue. In 
addition, the application must include evidence that FHWA has assigned 
to the State, or the State has requested assignment of, the 
responsibilities of FHWA with respect to one or more highway projects 
within the State under NEPA.
    (d) Multimodal project responsibilities. The Operating 
Administration(s) will presume that the responsibilities sought by the 
State include the Secretary's environmental review responsibilities for 
multimodal projects' elements that would otherwise fall under the 
Operating Administration's authority. These responsibilities include 
establishing appropriate relationships with the other Operating 
Administration(s) involved in the multimodal project, including 
cooperating agency, participating agency, and lead or co-lead agency 
relationships under NEPA. The State must affirmatively reject 
multimodal environmental review responsibilities in its application if 
it intends to have the responsibilities remain with the Operating 
Administration when a multimodal project is involved. In addition, 
States may:
    (1) Request the Secretary's environmental review responsibilities 
with respect to the highway, railroad, and/or public transportation 
elements of one or more particular multimodal projects by submitting an 
application with the information required in paragraphs (a)(1) through 
(10) of this section, but with respect to the multimodal project(s) at 
issue. The application must either request highway responsibilities for 
the multimodal project or include evidence that FHWA has assigned to 
the State, or the State has requested assignment of, the 
responsibilities of FHWA with respect to one or more highway projects 
within the State under NEPA; and
    (2) Request, at the same time the State applies for assignment of 
one of the Operating Administration's environmental review 
responsibilities, the general multimodal environmental review 
responsibilities of the other Operating Administration(s).
    (e) Electronic submissions. Applications may be submitted 
electronically to the appropriate Operating Administration.
    (f) Joint application. A State may submit joint applications for 
multiple Operating Administrations' responsibilities. A joint 
application should avoid redundancies and duplication of information to 
the maximum extent practicable. In its application, the State must 
distinguish the projects or classes of projects it seeks to assume by 
transportation mode. A joint application must provide all of the 
information required by each Operating Administration for which a State 
is seeking assignment. A State must submit joint applications to FHWA.
    (g) Requests for additional information. The appropriate Operating 
Administration(s) may request that the State provide additional 
information to address any deficiencies in the application or 
clarifications that may be needed prior to determining that the 
application is complete.


Sec.  773.111  Application review and approval.

    (a) The Operating Administration(s) must solicit public comment on 
the pending request and must consider comments received before 
rendering a decision on the State's application. Materials made 
available for this public review must include the State's application, 
a draft of the MOU, and a list of responsibilities sought by the State 
that the Operating Administration(s) proposes to retain. The 
notification may be a joint notification if two or more Operating 
Administrations are involved in the assignment for a project or a class 
of projects.
    (b) If the Operating Administration(s) approves the application of 
a State, then the Operating Administration(s) will invite the State to 
execute the MOU.
    (c) The Administrator for the appropriate Operating Administration 
will be responsible for approving the application and executing the MOU 
on behalf of the Operating Administration.
    (d) The State's participation in the Program is effective upon full 
execution of the MOU. The Operating Administration's responsibilities 
under

[[Page 55401]]

NEPA and any other environmental laws may not be assigned to or assumed 
by the State prior to execution of the MOU with the exception of 
renewal situations under Sec.  773.115(g) of this part.
    (e) The MOU must have a term of not more than 5 years that may be 
renewed pursuant to Sec.  773.115 of this part.
    (f) The State must publish the MOU and approved application on its 
Web site and other relevant State Web sites and make it reasonably 
available to the public for inspection and copying.


Sec.  773.113  Application amendments.

    (a) After a State submits its application to the appropriate 
Operating Administration(s), but prior to the execution of the MOU(s), 
the State may amend its application at any time to request the addition 
or withdrawal of projects, classes of projects, or environmental review 
responsibilities consistent with the requirements of this part.
    (1) Prior to submitting any such amendment, the State must 
coordinate with the appropriate Operating Administration(s) to 
determine if the amendment represents a substantial change in the 
application to such an extent that additional notice and opportunity 
for public comment is needed. The Operating Administration is 
responsible for making the final decision on whether notice and public 
comment is needed and whether to provide one opportunity (pursuant to 
Sec.  773.107(b)) or two opportunities (pursuant to Sec.  773.107(b) 
and Sec.  773.111(a)) for public comment. The Operating Administration 
will make this determination based on the magnitude of the changes.
    (2) If the Operating Administration determines that notice and 
solicitation of public comment is needed pursuant to Sec.  773.107(b), 
the State must include copies of all comments received, responses to 
substantive comments, and note the changes, if any, that were made in 
response to the comments.
    (b) After the execution of the MOU(s) or renewal MOU(s), a State 
may amend its application to the appropriate Operating 
Administration(s) to request additional projects, classes of projects, 
or more environmental review responsibilities consistent with the 
requirements of this part.
    (1) Prior to requesting any such amendment, the State must 
coordinate with the appropriate Operating Administration(s) to 
determine if the amendment represents a substantial change in the 
application information to the extent that additional notice and 
opportunity for public comment is needed. The Operating Administration 
is responsible for making the final decision on whether notice and 
public comment are needed and whether to provide one opportunity 
(pursuant to Sec.  773.107(b) or Sec.  773.111(a)) or two opportunities 
(pursuant to Sec.  773.107(b) and Sec.  773.111(a)) for public comment. 
The Operating Administration will make this determination based on the 
magnitude of the changes.
    (2) If the Operating Administration determines that notice and 
solicitation of public comment is required pursuant to Sec.  
773.107(b), the State must include copies of all comments received, 
responses to substantive comments, and note the changes, if any, that 
were made in response to the comments.
    (3) The Operating Administration is responsible for making the 
final decision on whether to accept the amendment and whether an 
amendment to the MOU is required. Amendments do not change the 
expiration date of the initial or renewal MOU.


Sec.  773.115  Renewals.

    (a) A State that intends to renew its participation in the Program 
must notify the appropriate Operating Administration(s) at least 12 
months before the expiration of the MOU.
    (b) Prior to requesting renewal, the State must coordinate with the 
appropriate Operating Administration(s) to determine if significant 
changes have occurred or new assignment responsibilities are being 
sought that would warrant statewide notice and opportunity for public 
comment prior to the State's submission of the renewal package. The 
Operating Administration is responsible for making the final decision 
on whether the State should engage in statewide notification prior to 
its submittal. The Operating Administration will make this 
determination based on the magnitude of the change(s) in the 
information and/or circumstances.
    (c) The renewal package must:
    (1) Describe changes to the information submitted in the initial 
Program application;
    (2) Provide up-to-date certifications required in Sec.  
773.109(a)(6) and (7) of this part for the applicable Operating 
Administration(s), if up-to-date certifications are needed or if the 
necessary State laws have termination dates that would occur before the 
end of a renewal period;
    (3) Provide evidence of the statewide public notification, if one 
was required under paragraph (b) of this section, and include copies of 
all comments received, responses to substantive comments, and note the 
changes, if any, that were made to the renewal package in response to 
the comments; and
    (4) Include the State Governor's (or in the case of District of 
Columbia, the Mayor's) signature approving the renewal package. For the 
Secretary's responsibilities with respect to highway projects, the top 
ranking transportation official in the State who is charged with 
responsibility for highway construction may sign the renewal package 
instead of the Governor.
    (d) A State must submit a renewal package no later than 180 days 
prior to the expiration of the MOU.
    (e) The Operating Administration(s) may request that the State 
provide additional information to address any deficiencies in the 
renewal application or to provide clarifications.
    (f) The Operating Administration(s) must provide Federal Register 
notification and solicit public comment on the renewal request and must 
consider comments received before approving the State's renewal 
application. Materials made available for this public review will 
include the State's original application, the renewal package, a draft 
of the renewal MOU, a list of responsibilities sought by the State that 
the Operating Administration proposes to retain, and auditing and 
monitoring reports developed as part of the Program. The notification 
may be a joint notification if two or more Operating Administrations 
are involved in the assignment for a project or a class of projects.
    (g) In determining whether to approve the State's renewal request, 
the Operating Administration will take into account the renewal 
package, comments received if an opportunity for public comments was 
provided in accordance with paragraph (f) of this section, the auditing 
and monitoring reports, and the State's overall performance in the 
Program. If the Operating Administration(s) approves the renewal 
request, then the Operating Administration(s) will invite the State to 
execute the renewal MOU. The Administrator for the appropriate 
Operating Administration will be responsible for approving the 
application and executing the renewal MOU on behalf of the Operating 
Administration. The renewal MOU must have a term of not more than 5 
years, and the State must publish it on the State's DOT Web site and 
other relevant State Web site(s).
    (h) At the discretion of the Operating Administration, a State may 
retain temporarily its assigned and assumed responsibilities under a 
MOU after the expiration of the MOU, where the

[[Page 55402]]

relevant Operating Administration(s) determines that:
    (1) The State made a timely submission of a complete renewal 
application in accordance with the provisions of this section;
    (2) The Operating Administration(s) determines that all reasonable 
efforts have been made to achieve a timely execution of the renewal; 
and
    (3) The Operating Administration(s) determines that it is in the 
best interest of the public to grant the continuance.


Sec.  773.117  Termination.

    (a) Termination by the Operating Administration. An Operating 
Administration(s) that approved the State's participation in the 
Program may terminate the State's participation if the Operating 
Administration(s) determines that the State is not adequately carrying 
out the responsibilities assigned to the State. Examples of situations 
where such a finding may be made include: persistent neglect of, or 
noncompliance with, any Federal laws, regulations, and policies; 
failure to address deficiencies identified during the audit or 
monitoring process; failure to secure or maintain adequate personnel 
and/or financial resources to carry out the responsibilities assumed; 
intentional noncompliance with the terms of the MOU(s); and persistent 
failure to adequately consult, coordinate, and/or take into account the 
concerns of other Operating Administrations, when applicable, and 
appropriate Federal, State, tribal, and local agencies with oversight, 
consulting, or coordination responsibilities under Federal 
environmental laws and regulations.
    (1) The Operating Administration(s) may rely on the auditing and 
monitoring reports as sources for a finding that the State is not 
adequately carrying out its responsibilities. The Operating 
Administration(s) may also rely on information on noncompliance 
obtained outside the auditing and monitoring process.
    (2) The Operating Administration(s) may not terminate a State's 
participation without providing the State with notification of the 
noncompliance issue that could give rise to the termination, and 
without affording the State an opportunity to take corrective action to 
address the noncompliance issue. The Operating Administration(s) must 
provide the State a period of no less than thirty (30) days to take the 
corrective actions. The Operating Administration(s) is responsible for 
making the final decision on whether the corrective action is 
satisfactory.
    (b) Termination by the State. The State may terminate its 
participation at any time by notifying the Secretary no later than 90 
days prior to the proposed termination date. The notice must include a 
draft transition plan detailing how the State will transfer the 
projects and responsibilities to the appropriate Operating 
Administration(s). Termination will not take effect until the State and 
the Operating Administration(s) agree, and the Operating 
Administration(s) approve a final transition plan. Transition plans 
must include:
    (1) A list of projects and their status in the environmental review 
process that the State will return to the Operating Administration(s);
    (2) A process for transferring files on pending projects;
    (3) A process for notifying the public that the State will 
terminate its participation in the Program and a projected date upon 
which this termination will take effect;
    (4) Points of contacts for pending projects; and
    (5) Any other information required by the Operating 
Administration(s) to ensure the smooth transition of environmental 
review responsibilities and prevent disruption in the environmental 
reviews of projects to the maximum extent possible.
    (c) Termination by mutual agreement. The State and the Operating 
Administration(s) may agree to terminate assignment on a specific date 
before the expiration of the MOU. Termination will not take effect 
until the State and the Operating Administration(s) agree, and the 
Operating Administration(s) approve a final transition plan. Transition 
plans must include the information outlined in paragraphs (b)(1)-(5) of 
this section.
    (d) Effect of termination of highway responsibilities. Termination 
of the assignment of the Secretary's environmental review 
responsibilities with respect to highway projects will result in the 
termination of assignment of environmental responsibilities for 
railroad, public transportation, and multimodal projects.

Appendix A to Part 773--Example List of the Secretary's Environmental 
Review Responsibilities That May Be Assigned Under 23 U.S.C. 327

Federal Procedures

    NEPA, 42 U.S.C. 4321 et seq.
    Regulations for Implementing the Procedural Provisions of NEPA 
at 40 CFR parts 1500-1508.
    FHWA/FTA environmental regulations at 23 CFR part 771.
    FRA's Procedures for Considering Environmental Impacts, 64 FR 
28545, May 26, 1999 and 78 FR 2713, Jan. 14, 2013.
    Clean Air Act, 42 U.S.C. 7401-7671q. Any determinations that do 
not involve conformity.
    Efficient Environmental Reviews for Project Decisionmaking, 23 
U.S.C. 139.

Noise

    Noise Control Act of 1972, 42 U.S.C. 4901-4918.
    Airport Noise and Capacity Act of 1990, 49 U.S.C. 47521-47534.
    FHWA noise regulations at 23 CFR part 772.

Wildlife

    Endangered Species Act of 1973, 16 U.S.C. 1531-1544.
    Marine Mammal Protection Act, 16 U.S.C. 1361-1423h.
    Anadromous Fish Conservation Act, 16 U.S.C. 757a-757f.
    Fish and Wildlife Coordination Act, 16 U.S.C. 661-667d.
    Migratory Bird Treaty Act, 16 U.S.C. 703-712.
    Magnuson-Stevens Fishery Conservation and Management Act of 
1976, as amended, 16 U.S.C. 1801-1891d.

Historic and Cultural Resources

    National Historic Preservation Act of 1966, 16 U.S.C. 470 et 
seq.
    Archaeological Resources Protection Act of 1979, 16 U.S.C. 
470aa-470mm.
    Archeological and Historic Preservation Act, 16 U.S.C. 469-469c.
    Native American Graves Protection and Repatriation Act, 25 
U.S.C. 3001-3013; 18 U.S.C. 1170.

Social and Economic Impacts

    American Indian Religious Freedom Act, 42 U.S.C. 1996.
    Farmland Protection Policy Act, 7 U.S.C. 4201-4209.

Water Resources and Wetlands

    Clean Water Act, 33 U.S.C. 1251-1387.

Section 404, 33 U.S.C. 1344
Section 401, 33 U.S.C. 1341
Section 319, 33 U.S.C. 1329

    Coastal Barrier Resources Act, 16 U.S.C. 3501-3510.
    Coastal Zone Management Act, 16 U.S.C. 1451-1466.
    Safe Drinking Water Act, 42 U.S.C. 300f--300j-26.
    Rivers and Harbors Act of 1899, 33 U.S.C. 403.
    Wild and Scenic Rivers Act, 16 U.S.C. 1271-1287.
    Emergency Wetlands Resources Act, 16 U.S.C. 3901 and 3921.
    Wetlands Mitigation, 23 U.S.C. 119(g) and 133(b)(14).
    FHWA wetland and natural habitat mitigation regulations at 23 
CFR part 777.
    Flood Disaster Protection Act, 42 U.S.C. 4001-4130.

Parklands

    Section 4(f), 49 U.S.C. 303; 23 U.S.C. 138.
    FHWA/FTA Section 4(f) regulations at 23 CFR part 774.
    Land and Water Conservation Fund, 16 U.S.C. 460l-4-460l-11.

[[Page 55403]]

Hazardous Materials

    Comprehensive Environmental Response, Compensation, and 
Liability Act, 42 U.S.C. 9601-9675.
    Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. 
9671-9675.
    Resource Conservation and Recovery Act, 42 U.S.C. 6901-6992k.

Executive Orders Relating to Eligible Projects

    E.O. 11990, Protection of Wetlands
    E.O. 11988, Floodplain Management
    E.O. 12898, Federal Actions to Address Environmental Justice in 
Minority Populations and Low Income Populations
    E.O. 13112, Invasive Species

Title 49

0
2. Add 49 CFR part 264 to read as follows:

PART 264--SURFACE TRANSPORTATION PROJECT DELIVERY PROGRAM 
APPLICATION REQUIREMENTS AND TERMINATION

Sec.
264.101 Procedures for complying with the surface transportation 
project delivery program application requirements and termination.

    Authority:  23 U.S.C. 327; 49 CFR 1.81.


Sec.  264.101   Procedures for complying with the surface 
transportation project delivery program application requirements and 
termination.

    The procedures for complying with the surface transportation 
project delivery program application requirements and termination are 
set forth in part 773 of title 23 of the Code of Federal Regulations.

PART 622--ENVIRONMENTAL IMPACT AND RELATED PROCEDURES

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

    Authority:  42 U.S.C. 4321 et seq.; 49 U.S.C. 303 and 5323(q); 
23 U.S.C. 139, 326, and 327; Pub. L. 109-59, 119 Stat. 1144, 
sections 6002 and 6010; 40 CFR parts 1500-1508; 49 CFR 1.81, 1.85; 
and Pub. L. 112-141, 126 Stat. 405, sections 1313 and 1315.


0
4. Revise Sec.  622.101 to read as follows:


Sec.  622.101   Cross-reference to procedures.

    The procedures for complying with the National Environmental Policy 
Act of 1969, as amended (42 U.S.C. 4321 et seq.), and related statutes, 
regulations, and orders are set forth in part 771 of title 23 of the 
Code of Federal Regulations. The procedures for complying with 49 
U.S.C. 303, commonly known as ``Section 4(f),'' are set forth in part 
774 of title 23 of the Code of Federal Regulations. The procedures for 
complying with the surface transportation project delivery program 
application requirements and termination are set forth in part 773 of 
title 23 of the Code of Federal Regulations.

    This final rule is being issued pursuant to authority delegated 
under 49 CFR 1.81.
    Issued on September 10, 2014.
Gregory G. Nadeau,
Acting Administrator, Federal Highway Administration.
Therese McMillan,
Acting Administrator, Federal Transit Administration.
Joseph C. Szabo,
Administrator, Federal Railroad Administration.
[FR Doc. 2014-22080 Filed 9-15-14; 8:45 am]
BILLING CODE 4910-22-P

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