Surface Transportation Project Delivery Program Application Requirements |
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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