Surface Transportation Project Delivery Program Application Requirements |
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Victor M. Mendez
Federal Highway Administration
Peter Rogoff
Federal Transit Administration
Joseph C. Szabo
Federal Railroad Administration
August 30, 2013
[Federal Register Volume 78, Number 169 (Friday, August 30, 2013)]
[Proposed Rules]
[Pages 53712-53725]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-20912]
[[Page 53712]]
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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 Transit
Administration (FTA), Federal Railroad Administration (FRA), DOT.
ACTION: Notice of proposed rulemaking (NPRM); request for comments.
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SUMMARY: This NPRM provides interested parties with the opportunity to
comment on proposed regulations that would govern the application
requirements for the Surface Transportation Project Delivery Program
(Program). The proposed regulations are 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, allows any State to apply for the Program,
expanded the scope of the Secretary's responsibilities that may be
assigned and assumed under the Program, and created a renewal process
for Program participation. The FHWA, FTA, and FRA, hereinafter referred
to as the ``Agencies,'' seek comments on the proposals contained in
this NPRM.
DATES: Comments must be received on or before October 29, 2013.
ADDRESSES: To ensure that you do not duplicate your docket submissions,
please submit them by only one of the following means:
Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the online instructions for submitting
comments.
Mail: Docket Management Facility, U.S. Department of
Transportation, 1200 New Jersey Ave., SE., W12-140, Washington, DC
20590-0001.
Hand Delivery: West Building Ground Floor, Room W12-140,
1200 New Jersey Ave., SE., between 9 a.m. and 5 p.m., Monday through
Friday, except Federal holidays. The telephone number is (202) 366-
9329.
Instructions: You must include the agency name and docket
number or the Regulatory Identification Number (RIN) for the rulemaking
at the beginning of your comments. All comments received will be posted
without change to http://www.regulations.gov, including any personal
information provided.
FOR FURTHER INFORMATION CONTACT: For FHWA: Carol Braegelmann, Office of
Project Delivery and Environmental Review (HEPE), (202) 366-1701, or
Jomar Maldonado, Office of the Chief Counsel (HCC), (202) 366-1373,
Federal Highway Administration, 1200 New Jersey Ave., SE., Washington,
DC 20590-0001. For FTA: Adam Stephenson, Office of Planning and
Environment (TPE), (202) 366-5183, or Dana Nifosi, Office of Chief
Counsel (TCC), (202) 366-4011. For FRA: David Valenstein, Office of
Railroad Policy and Development (RPD), (202) 493-6368, or Zeb Schorr
Office of Chief Counsel (RCC), (202) 493-6072. 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 23 United States Code
(U.S.C.) 327), established a pilot program allowing the 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 action 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) on 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 the Moving Ahead
for Progress in the 21st Century Act (MAP-21), Public Law 112-141, 126
Stat. 405, which contains new requirements that the Secretary of
Transportation (Secretary) must meet in complying with various
environmental requirements. Section 1313 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. The Agencies are initiating
this rulemaking to address that requirement.
General Discussion of the Proposals
This NPRM proposes to revise part 773 in title 23 to account for
changes to the Program application process as a result of MAP-21. The
NPRM also proposes to to create a new part 264 in title 49 to cross-
reference the Program application procedures for the benefit of FRA
applicants. Finally, the NPRM proposes to add a reference to 23 U.S.C.
327 and the Program application procedures in 49 CFR part 622, subpart
A--Environmental Procedures for the benefit of FTA applicants. The NPRM
is limited to the application process and the information the Agencies
require from any eligible State interested in applying to the Program.
Specifically, the proposal provides for applicant eligibility criteria,
projects and responsibilities that are eligible or ineligible for
assignment, pre-application procedures, content and submittal
procedures for the application, review and approval procedures, and
procedures for the renewal of participation in the Program. In
addition, the proposal provides a provision on the authority for
termination of Program participation. The application requirements
would apply to eligible States interested in applying for the
Secretary's responsibilities under NEPA and other Federal environmental
laws with respect to certain highway, railroad, public transportation,
and multimodal projects. As part of this NPRM, the Agencies are seeking
input on options for implementing MAP-21's direction to provide for
assignment and assumption of environmental review responsibilities with
respect to multimodal projects.
Under the Program, an eligible State may apply for the assignment
and assumption of the Secretary's responsibilities under NEPA for
eligible surface transportation projects. The Secretary's
responsibilities under NEPA
[[Page 53713]]
include making categorical exclusion determinations, developing and
issuing environmental assessments (EA), issuing Findings of No
Significant Impacts (FONSI), and engaging in the environmental impact
statement (EIS) process, including, but not limited to, developing and
issuing draft, final, and supplemental EISs, issuing Records of
Decision, and engaging in re-evaluations. States also may request the
assignment and assumption of the Secretary's responsibilities for
environmental reviews, consultations, or other actions required by
other Federal environmental requirements pertaining to the review of
the eligible surface transportation projects. Examples of such other
Federal environmental requirements include evaluations, determinations,
and consultations under section 106 of the National Historic
Preservation Act (NHPA), section 7 of the Endangered Species Act, and
23 U.S.C. 138 and 49 U.S.C. 303 (section 4(f)). The Secretary has
delegated NEPA and other Federal environmental review responsibilities
pertaining to the review and approval of highway, railroad, and public
transportation projects, as well as the administration and
implementation of this Program to the Agencies pursuant to 49 CFR 1.81.
Although a State may submit simultaneous applications, obtaining
assignment for the Secretary's environmental review responsibilities
for highway projects is a precondition for obtaining assignment of
environmental review responsibilities for non-highway projects (i.e.,
railroad, public transportation, and multimodal projects). Termination
of assignment and assumption for responsibilities with respect to
highway projects also would terminate assignment and assumption for
responsibilities with respect to non-highway projects.
It is important to note that this NPRM is focused on the
application procedures for eligible States as required in 23 U.S.C.
327(b)(2). The Agencies have determined that, with the exception of the
termination provision, regulations on the implementation of the Program
are not needed at this time. As a result, this NPRM does not address
other aspects of the Program, such as the auditing and monitoring
requirements, content of Memoranda of Understanding (MOU), or
responsibilities associated with litigation. The Agencies anticipate
developing guidance on these issues in the future.
Section-by-Section Discussion of Changes
This section provides an overview of the proposed changes to 23 CFR
part 773 and 49 CFR part 622, and proposed new part 264 in 49 CFR. The
Agencies have relied heavily on FHWA's experience in the development
and implementation of the current part 773 regulations.
23 CFR Part 773 Title--Surface Transportation Project Delivery Program
Application Requirements and Termination
The Agencies propose a title to this part that clearly describes
the scope of the part. As discussed above, the NPRM does not address
implementation procedures and requirements, other than a termination
provision.
Section 773.101--Purpose
The Agencies propose a section to explain the purpose of the
Program and to reflect the scope of the Secretary's responsibilities
eligible for assignment and State assumption. A notable difference from
the current 23 CFR 773.101 is that the proposed section recognizes the
expanded responsibilities that can be assigned (i.e., railroad, public
transportation, and multimodal projects).
Section 773.103--Definitions
The Agencies propose a section similar to current 23 CFR 773.103 to
provide definitions for specific terms that have special significance
to an application under this Program. In addition to terms that were
originally defined in section 773.103, the Agencies' proposal would add
definitions for MOU, multimodal project, NEPA, Operating
Administration, public transportation project, and railroad project.
The Agencies propose to define the term ``classes of projects'' as
``either a defined group of projects or all projects to which Federal
environmental laws apply.'' The proposal is different from the
definition of ``classes of highway projects'' in the current 23 CFR
773.103 because it eliminates the ``highway'' modifier. Under the
Program, a State may request assignment for particular projects and
identify them in the application. However, a State also may describe a
class of projects instead of or in addition to specific projects. For
example, a State requesting and obtaining assignment of ``all highway
projects located outside the Interstate System'' would be responsible
for the environmental review of any future highway project fitting the
class for the duration of the term of the agreement. The Agencies also
may make assignment decisions based on classes of projects. For
example, an Agency may decide to retain responsibility for a particular
class of projects (e.g., multimodal projects where the State has not
received assignment from the other Agencies, projects within or
crossing Federal lands, projects within or crossing Tribal lands).
The proposed definition of ``Federal environmental law'' is similar
to the current definition in 23 CFR 773.103. This definition includes
Executive Orders, which were added to the final rule definition of
``Federal environmental law'' in 23 CFR 773.103 (72 FR at 6465). In
adding Executive Orders to the current definition in Sec. 773.103,
FHWA noted that the purpose of Executive Orders was to improve the
internal management and administration of the Executive Branch of the
Federal Government and did not create any legally enforceable rights.
In adopting this definition, the Agencies reiterate this point and note
that nothing in this rulemaking process is intended to change the legal
force and effect of any Federal statute, regulation, or Executive Order
cited herein. Notable differences between the proposed definition and
the current definition in Sec. 773.103 are the explicit inclusion of
the terms ``railroad,'' ``public transportation'' and ``multimodal
projects''; deletion of specific references to non-assignability of
Clean Air Act (CAA) conformity determinations and the Secretary's
transportation planning responsibilities; and deletion of a provision
explaining that only those laws that are inherently environmental are
assignable. The Agencies propose to move the notification of
restrictions (i.e., CAA conformity, transportation planning, and
responsibilities that are not inherently environmental) to the
eligibility section.
The Agencies propose to define ``highway projects'' as ``any
undertaking to construct (including initial construction,
reconstruction, replacement, rehabilitation, restoration, or other
improvements) a highway, bridge, or tunnel, or any portion thereof,
including environmental mitigation activities, which is authorized
under title 23 U.S.C. 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 or construct the project.'' This proposed definition
is similar to the
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highway definition in the current 23 CFR 773.103 with the notable
difference that it eliminates limitations in the current definition for
priority projects under Executive Order 13274, Environmental
Stewardship and Transportation Infrastructure Project Reviews and
projects receiving funds through chapter 53 of title 49, U.S.C. The
Agencies proposed provision in Sec. 773.105(d) would address
situations where projects should be retained for various reasons,
including designation of priority project status under Executive Order
13274. The exclusion of projects funded through chapter 53 of title 49,
U.S.C., has been eliminated because the MAP-21 revisions now authorize
the use of the Program for multimodal projects. The Agencies propose to
retain the exclusion of Federal Lands Highways projects. Instead of
making a reference to Federal Lands Highways, the Agencies propose to
reference the provisions authorizing such projects (i.e., 23 U.S.C.
202, 203, and 204). In some limited cases, a State may design and
construct a project authorized under these provisions. These would be
considered highway projects under the definition, and their assignment
would be subject to the conditions established in the agreement.
The proposed definition would not include the last sentence in the
highway project term in the current version of 23 CFR part 773. This
provision was added in the current part 773 rule to address concerns
expressed by Federal agencies that the exclusion of multimodal projects
in assignments under the Program would have encouraged participating
States to limit the consideration of reasonable alternatives (72 FR
6465). This restriction is no longer needed since the MAP-21 revisions
now authorize assignment of multimodal projects under the Program.
States participating in the Program are expected to follow the same
standards for environmental review as Federal agencies. This includes
NEPA's requirement for lead agencies to consider, in some
circumstances, reasonable alternatives that would be outside their
jurisdiction (40 CFR 1502.14(c)). Participating States would be
expected to consider alternatives, whenever appropriate and reasonable,
that meet the purpose and need for the action, but would result in a
project for which it does not have all assigned environmental review
responsibilities (e.g., multimodal project).
The Agencies propose to define ``MOU'' as ``Memorandum of
Understanding, a written agreement that complies with 23 U.S.C.
327(b)(4)(C) and (c), and this part.'' Section 327(b)(4)(C) of title
23, U.S.C., establishes that one of the conditions for selection is
that the head of the State agency having primary jurisdiction over
highway matters enters into a written agreement with the Secretary.
Section 327(c) describes the requirements for the agreements.
The Agencies propose to define the term ``multimodal project'' for
this part as a ``project that falls under the jurisdiction by law or
special expertise of two or more DOT Operating Administrations.'' This
term is broader than the statutory term of ``multimodal project'' in 23
U.S.C. 139, which limits ``multimodal projects'' to projects funded in
whole or in part by either FHWA or FTA. For example, for purposes of
the Program, a project funded in whole by FRA and that would receive no
funding from FHWA or FTA but that would fall under the jurisdiction by
law or special expertise of these Agencies would be considered a
multimodal project under the proposed definition.
The Agencies propose to define ``NEPA'' as the ``National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).''
The Agencies propose to define ``Operating Administration'' as
``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,
Research and Innovative Technology Administration, and Saint Lawrence
Seaway Development Corporation.''
The Agencies propose to define the ``Program'' as the ```Surface
Transportation Project Delivery Program' established under 23 U.S.C.
327.''
The Agencies propose to define ``public transportation project'' as
``a capital project or operating assistance for `public
transportation,' as defined in chapter 53 of title 49, U.S.C.''
The Agencies propose to define ``railroad project'' as ``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.''
The Agencies propose to define ``State'' to mean ``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, railroad, public transportation,
or multimodal projects eligible for assignment. State does not include
agencies of local governments, transit authorities or commissions under
their own board of directors, or State-owned corporations.''
Section 773.105--Eligibility
The Agencies propose an eligibility section to describe eligible
applicants, eligible and ineligible responsibilities for assignment,
and ineligible projects. Paragraph (a) proposes to establish the
requirements for an Applicant to be eligible and to retain eligibility
for Program participation. The proposed use of the phrase ``retain
eligibility'' is intended to provide notice that any change in the
State's circumstances or laws that creates a conflict with these
requirements could result in termination of the State's participation
in the Program. The conditions for Applicants' eligibility for the
Secretary's responsibilities with respect to highway projects would be
described first because highway assignment is a prerequisite for the
assignment of the Secretary's responsibilities with respect to non-
highway projects (23 U.S.C. 327(a)(2)(B)).
Under the proposed regulation, the State agency seeking and
obtaining the assignment must be the State Department of Transportation
(State DOT) for highway and railroad projects. The State must consent
to accept the jurisdiction of the Federal courts for compliance,
discharge, and enforcement of any responsibility of the Secretary that
the State is seeking (23 U.S.C. 327(c)(3)(B)). State law would dictate
how a State can achieve this waiver declaration of its sovereign
immunity under the 11th Amendment of the U.S. Constitution. For
example, in some States the authority to waive State sovereign immunity
is reserved for the legislature. In other States, the authority may
have been delegated to the State's Attorney General. In addition to
these requirements, the State must have in place laws that authorize
the State to take actions necessary to carry out the responsibilities
it is assuming (23 U.S.C. 327(c)(3)(C)(i)); must have laws that are
[[Page 53715]]
comparable to the Federal Freedom of Information Act (5 U.S.C. 552)
(FOIA), including providing that decisions regarding public
availability of documents under the State law be reviewable by a court
of competent jurisdiction (23 U.S.C. 327(c)(3)(C)(ii)); and must have
the financial resources necessary to carry out the responsibilities
being assumed (23 U.S.C. 327(c)(3)(D)).
The proposed regulation would require States to adhere to the same
conditions for assumption of the Secretary's responsibilities with
respect to non-highway projects with two exceptions: (1) For public
transportation projects, the State agency applying for assignment would
not have to be a State DOT and (2) as noted above, a State would be
required to obtain and maintain assignment of responsibilities with
respect to one or more highway projects. This latter exception would
mean that termination of assignment of responsibilities with respect to
highway projects for a State would be cause for termination of
assignment of responsibilities with respect to that State's non-highway
projects under the proposed regulation.
Paragraph (b) proposes to establish eligible and ineligible
responsibilities. A State seeking participation in the Program must
request and obtain assignment for all NEPA responsibilities for the
project(s) or classes of projects being sought. This proposed
regulation would not permit assignment of only select aspects of the
NEPA responsibilities (e.g., developing and approving only EAs and
FONSIs). However, in accordance with 23 U.S.C. 327(a)(2)(B)(i), a State
does not have to seek all environmental review responsibilities. As an
example, a State may decide to seek all environmental review
responsibilities with the exception of those associated with section
106 of the NHPA.
As established by 23 U.S.C. 327(a)(2)(B)(iv), the list of
ineligible responsibilities would include conformity determinations
under section 176(c) of the CAA and the Secretary's responsibilities
under transportation planning legal requirements (23 U.S.C. 134 and
135; 49 U.S.C. 5303 and 5304). The list also would include government-
to-government consultation with Tribal governments (see Executive Order
13175, Consultation and Coordination with Indian Tribal Governments).
Proposed paragraph (b) would clarify that the Secretary's
responsibilities that are not related to the environmental review
process are not eligible for assignment and assumption under this
Program. For example, in the highway context, approvals of changes to
Interstate access, issuance of Buy America waivers, and approval of
Interstate and National Highway System design exceptions are not
considered to be environmental review responsibilities that can be
assigned through this Program.
In addition, proposed paragraph (b)(6) would exclude the assignment
of the Secretary's environmental review responsibilities for actions of
DOT Operating Administrations other than FHWA, FRA, and FTA, providing
notice to potential applicant States that the Secretary's
responsibilities for other portions of multimodal projects are not
assignable under the Program. For example, in a situation where a
highway, railroad, or public transportation project will either receive
funding or require the approval of another DOT Operating Administration
not covered by the Program (e.g., Maritime Administration (MARAD) or
Federal Aviation Administration (FAA)), the State may request and
receive assignment of the FHWA, FRA, or FTA environmental review
responsibilities, but would not be able to request or receive
assignment of the other Operating Administration's environmental review
responsibilities. The Agencies have determined that this approach is
consistent with section 1313 of MAP-21. The Agencies have denominated
the proposal as option 1. The Agencies specifically request public
comment on the feasibility of and interest in this proposal.
The Agencies evaluated other approaches for implementing the
statute's direction to provide for assignment of environmental review
responsibilities with respect to multimodal projects. Under option 2
the rule would have allowed assignment of environmental review
responsibilities for elements of a multimodal project not explicitly
listed in the statute (e.g., airports, motor carrier safety, port, and
pipeline/hazardous materials safety). Option 2 would have allowed the
assignment of environmental review responsibilities even when the
largest element of the project is an element that was not specifically
listed in the law. For example, under this reading a project that is in
its majority an airport project, but that has a minor public
transportation element, would be assignable under the Program as a
multimodal project. The Agencies considered various factors in pursuing
option 1 rather than option 2. The broader interpretation in option 2
could create administrative difficulties in its implementation. For
example, Operating Administrations other than FHWA, FRA, and FTA would
need to become familiar with, participate, and budget for the auditing
and monitoring process. Furthermore, it is more common for MARAD and
FAA projects to involve third-party sponsoring entities other than a
State (e.g., port and airport authorities) that are ineligible for
assignment and who may want DOT to retain its responsibilities. In
addition, neither the MAP-21 nor its legislative history provide clear
direction that the provision should be implemented in its broadest
sense. Therefore, the Agencies did not believe that option 2 was
reasonable or consistent with this provision. See U.S. Telecom Ass'n v.
F.C.C., 359 F. 3d 554, 566 (D.C. Cir. 2004) (holding that Federal
agencies may not subdelegate to outside entities--private or
sovereign--absent affirmative evidence of authority to do so).
Despite issues described in the previous paragraph, if the Agencies
were to pursue option 2, the Agencies envision that the application
process would proceed in the following manner: (1) A State would
request the responsibilities for multimodal projects through the Office
of the Secretary of Transportation (OST); (2) OST would send the
request to all affected DOT Operating Administrations for their
coordination, review, and approval; (3) if approved, the Operating
Administrations would enter into agreements with the State and would
share responsibility for the oversight (i.e., audit and monitoring
requirements) with respect to the assigned environmental review
responsibilities that would have otherwise been under their
jurisdiction. Obtaining assignment for the Secretary's environmental
review responsibilities with respect to highway projects would continue
to be a precondition of obtaining assignment for the Secretary's
environmental review responsibilities for non-highway projects.
However, the Agencies do not consider option 2 reasonable or consistent
with this provision, as outlined in the previous paragraph. The
Agencies specifically request public comment on the feasibility of and
interest in this option.
Under option 3, the Agencies considered a more limited approach
than option 1, where the only multimodal projects considered for
assignment are those made up of highway, railroad, and/or public
transportation components and where the State successfully obtains
assignment for all of the Secretary's environmental review
responsibilities for the project. Under such scenario, a
[[Page 53716]]
State may obtain assignment of a highway-railroad, railroad-public
transportation, highway-public transportation, or highway-railroad-
public transportation project if the State successfully obtains
assignment from the Operating Administrations involved. Projects that
have components of other DOT Operating Administrations would not be
eligible for assignment. Restricting the assignment to situations where
the State successfully obtains assignment for all the environmental
review responsibilities involved (i.e., highway, railroad, and/or
public transportation) would address complexities that could result
from having a State acting for the Secretary and a DOT Operating
Administration working together in a multimodal project. Examples of
such complexities include the process for handling conflict resolution
when a State has assumed the Secretary's responsibilities and a DOT
Operating Administration is the other party involved in the conflict;
joint legal representation issues when a participating State and
another DOT Operating Administration are involved; and the potential
impacts on privileges, such as protections for deliberative materials.
The Agencies believe that this approach may be overly restrictive. The
Agencies specifically request public comment on the feasibility of and
interest in this option.
Proposed paragraph (c) would describe classes of projects that are
ineligible for assignment. Ineligible classes of projects would include
those that cross State boundaries and those that cross or are at
international boundaries. Federal interest in these types of projects
would warrant the active participation and involvement of the Agencies
in the environmental review. Section 1503 of MAP-21 amends 23 U.S.C.
106 by creating a category of projects--high risk category--for which
FHWA may not assign its responsibilities under 23 U.S.C. 106 to a State
(see 23 U.S.C. 106(c)(4)). Paragraph (c) proposes to apply this
assignment limitation to assignments under the Program.
Finally, the Agencies are proposing paragraph (d) to reiterate that
they have discretion to reject assignment of eligible responsibilities
or projects under the Program. Under the pilot program, FHWA did not
allow assignment to the State of the responsibility for environmental
review of projects identified for oversight under Executive Order
13274. The Agencies have determined that Executive Order 13274 projects
may not be the only projects that warrant high-level involvement from
the Agencies. The proposed paragraph (d) would entitle the Agencies to
reject the assignment for a project under the Program based on unique
circumstances surrounding the project or group of projects. For
example, responsibilities for which the Operating Administration could
exercise this discretion include the Secretary's environmental review
responsibilities for projects that raise unique issues or precedent-
setting analyses, or for projects that are within or cross Federal or
Tribal lands.
Section 773.107--Pre-application Requirements
The Agencies propose this section to discuss pre-application
requirements. Paragraph (a) proposes a pre-application coordination
meeting between the appropriate Division, Regional, or Headquarters
office of the Operating Administration and the State requesting the
assignment. The purpose of this meeting would be to understand the
State's interests, to identify the responsibilities that would be the
subject of the application, and to establish timelines for the
application process. This coordination would be important for
clarifying any issues and questions regarding the application process
and Program implementation. For example, this meeting would be useful
for addressing issues related to the handling of multimodal projects.
The meeting could establish the State's interest in assuming
responsibility for specific multimodal projects or a class of
multimodal projects, procedures that may be needed for seeking
assignment of multimodal projects not identified at the time of
application, and discussion of classes of multimodal projects that may
be best handled on a case-by-case basis. It may be useful for the State
and the relevant Operating Administration(s) to discuss possible
scenarios for the identification of multimodal projects, such as
situations where a project can be identified as a multimodal project
early in project planning or at a later stage (e.g., where a project
that started out as a highway, public transportation, or railroad and
changes into a multimodal project during alternatives analysis). The
meeting could also be useful for discussing how the State proposes to
address environmental review for special classes of projects such as
those that affect Federal or Tribal lands.
Paragraph (b) proposes to establish public notification
responsibilities for States applying for Program participation. The
proposed language is similar to the statutory language in 23 U.S.C.
327(b)(2)(C) (requiring States to provide evidence of the notice and
solicitation and copies of the comments received) and section 327(b)(3)
(requiring States to provide notification 30 days before the
application submission and authorizing States to provide notice and
solicit comments in accordance with the State laws for public
notification). The Agencies have also included a requirement for the
State to seek comments from resource agencies--those Federal, State,
and Tribal agencies that have oversight or interest over protected
resources in their State. This information would be useful for the
Agencies' compliance with section 327(b)(5) (requiring the Secretary to
solicit the views of Federal agencies that would have consultation
responsibilities for assigned projects).
The Agencies propose a requirement, under paragraph (b)(1), for
applicant States seeking the Secretary's responsibilities with respect
to public transportation, to identify and solicit comments from
recipients of assistance under chapter 53 of title 49, U.S.C. This
would assist FTA in identifying recipients of assistance under chapter
53 of title 49, U.S.C., who would want FTA to maintain the
responsibilities for a public transportation project pursuant to
section 327(a)(2)(B)(iii). The FTA would consider this information in
its final assignment decision.
The Agencies propose paragraphs (c) and (d) to encourage States to
identify their respective processes for consenting to Federal court
jurisdiction and to cure any deficiency with respect to any State
information disclosure law or regulation that would make it
inconsistent with FOIA. The process for consenting to Federal court
jurisdiction may vary from State to State. These paragraphs propose to
clarify that States must start this process as soon as possible and
must complete it before submitting the application.
Section 773.109--Application Requirements
Section 773.109 proposes to include the application requirements.
The proposal includes application provisions similar to those in
current regulation 23 CFR 773.106. Notable differences from current
Sec. 773.106 are the inclusion of application procedures for railroad,
public transportation, and multimodal project environmental review
responsibilities; a paragraph encouraging electronic submissions; a
paragraph discussing the joint application process; and a paragraph
authorizing the Agencies to seek additional information.
The proposal defines the application requirements for the FHWA's
responsibilities with respect to highway
[[Page 53717]]
projects first because obtaining highway assignment is a precondition
to obtaining responsibilities for non-highway projects. As specified in
proposed Sec. 773.105(a)(1)(i) the State entity seeking to participate
in the Program must be the State DOT. Paragraph (a)(1) proposes to
require the State to set forth in its application the highway projects
or classes of highway projects for which it is seeking to obtain the
Secretary's NEPA responsibilities. Proposed paragraph (a)(2) would
require the State's application to identify which environmental review
responsibilities, in addition to NEPA, it is seeking to obtain. As
discussed in this preamble, a State must seek all NEPA
responsibilities, but may seek either all, some, or none of the
Secretary's responsibilities with respect to the other Federal
environmental laws.
Proposed paragraph (a)(3) would require a State to discuss how it
intends to carry out the responsibilities. Under the proposal, a State
would need to provide a summary of that State's procedures currently in
place to guide the process. A State would need to provide these
procedures to FHWA either electronically or by submitting a hard copy.
The proposal also would require a State to discuss any management
changes it has made or will make to ensure good quality analyses. The
proposal also would require a State to identify the process it will use
for identifying projects that deserve higher scrutiny within that
State. This requirement stems from the FHWA and FTA joint NEPA
procedures at 23 CFR 771.125(c), which identifies situations where a
Final EIS must be submitted from the Division or Region to Headquarters
for approval. Under Sec. 771.125(c), FHWA's Headquarters office would
need to approve the Final EIS for projects where: (1) Additional
coordination with other Federal, State, or local government agencies is
needed; (2) the social, economic, or environmental impacts of the
action may need to be explored more fully; (3) the impacts of the
action are unusually great; (4) major issues remain unresolved; or (5)
the action involves national policy issues. The proposed provision
would require States to develop an analogous process to ensure that the
State's Headquarters office approves the Final EIS for particular types
of projects before they can proceed.
Proposed paragraph (a)(4) would require a State to describe its
staff resources and any organizational changes it has made or will make
to carry out the responsibilities sought. Proposed paragraph (a)(5)
would require a State to summarize the financial resources available to
carry out the responsibilities, the resource and staffing needs, and to
provide a commitment that financial resources will be made available to
meet these needs. These requirements stem from 23 U.S.C. 327(b)(4)(B)
and (c)(3)(D).
Proposed paragraphs (a)(6) through (8) would require a State to
provide evidence that it has waived its sovereign immunity with respect
to the Secretary's responsibilities it is seeking to acquire, that it
has laws comparable to FOIA, and that it has met the notice and
solicitation of public comment requirements. The evidence sought for
the sovereign immunity waiver and the FOIA requirement would take the
form of a certification from the State's Attorney General or other
State official legally empowered by State law to make such
certification. This certification requirement stems from 23 U.S.C.
327(c)(3)(C).
Under proposed paragraph (a)(9), the Agencies would require a State
to provide a point of contact for questions regarding the application
and a point of contact for questions regarding the implementation of
the Program in that State. These two points of contacts may be the same
individual.
The Agencies propose paragraph (a)(10) to require a Governor, or
the Mayor in the District of Columbia, to sign the application as
acknowledgment of the commitment to provide resources for the
implementation of the Program and the consent to exclusive Federal
court jurisdiction for cases arising from the implementation of the
Program in the State.
Proposed paragraph (b) would establish that the same information
requirements apply for requests of the Secretary's environmental review
responsibilities with respect to public transportation projects, but
the discussion focuses on public transportation projects. In addition,
the paragraph would require evidence that a State has either obtained
assignment for the Secretary's environmental review responsibilities
with respect to highway projects or has requested the assignment
concurrently with the public transportation request. The Agencies
propose a requirement for a State to provide evidence that it has
notified recipients of assistance under chapter 53 of title 49, U.S.C.,
of the application (see 23 U.S.C. 327(a)(2)(B)(iii)).
Proposed paragraph (c) would establish that the same information
requirements applicable to the request for the Secretary's
environmental review responsibilities for highway projects would apply
to the request for the Secretary's environmental review
responsibilities for railroad projects. In addition, the paragraph
would require evidence that a State has either obtained assignment for
the Secretary's environmental review responsibilities with respect to
highway projects or has requested the assignment concurrently with the
railroad project request.
Proposed paragraph (d) would cover the application requirements for
the Secretary's environmental review responsibilities with respect to
multimodal projects. A State may seek assignment of the Secretary's
environmental review responsibilities for the highway, railroad, and/or
public transportation components of the multimodal project. As
discussed above in this preamble, the Secretary's environmental review
responsibilities with respect to actions of other Operating
Administrations are not eligible for assignment. Under this proposal, a
State would obtain the assignment for the component of the multimodal
project that is eligible for assignment (i.e., highway, railroad, or
public transportation) and would need to work with the Operating
Administration(s) with jurisdiction by law or special expertise on the
project to ensure a coordinated environmental review. This could
involve the establishment of a special relationship with the DOT entity
such as a joint lead agency relationship or a lead and cooperating
agency relationship under NEPA.
Ideally, the identification of a multimodal project would occur
early enough to allow for a joint application of the Secretary's
responsibilities before the environmental review starts. However, in
some situations the identification of a multimodal project may not
occur until a later stage in the environmental review stage (e.g.,
identification of alternatives). States are encouraged to submit an
application as early as possible once the project is determined to be a
multimodal project. A State must submit an application to each Agency
for which that State is seeking assignment of environmental review
responsibilities.
Proposed paragraph (e) would authorize the electronic submittal of
applications. Proposed paragraph (f) would authorize the joint
submittal of applications. The Agencies believe that this provision
would be particularly useful when a State is interested in seeking
assignment for groups or classes of projects and multiple modal
responsibilities (e.g., highway and public transportation NEPA
responsibilities). Proposed paragraph (g) reminds States and the public
that the
[[Page 53718]]
Agencies are authorized to seek more information to cure any
deficiencies in a submitted Program application.
Section 773.111--Application Review and Approval
Proposed Sec. 773.111 would establish the review and approval
process. Proposed paragraph (a) would require the Operating
Administration to solicit public comments and consider these comments
in its evaluation of the State's application. Information made
available to the public for its review may include materials such as
the State's original application and any amendments to the application,
and any additional supporting material that is not included in the
State's application. The materials for public review also may include a
list of responsibilities sought by the State that the Operating
Administration proposes to retain. This information would be useful for
the public and commenting agencies to understand the limits of the
proposed assignment. The paragraph would allow the use of joint notices
for those situations where the State seeks the environmental review
responsibilities of more than one of the Agencies for a project or a
class of projects.
Proposed paragraph (b) would establish that upon approving the
application, the Operating Administration will invite the State to
enter into an agreement in accordance with 23 U.S.C. 327(b)(4)(C) and
(c). Proposed paragraph (c) would establish that the assignment would
not be effective until an MOU is executed. Proposed paragraph (d) would
establish that the MOUs may be renewed for a term not longer than 5
years in accordance with 23 U.S.C. 327(c)(5). Proposed paragraph (e)
indicates that an MOU would be made available for public inspection.
Section 773.113--Application Amendments
Proposed Sec. 773.113 is similar to the current regulation at 23
CFR 773.108. Proposed paragraph (a) would establish that the State may
amend its application after submission of the application but prior to
the execution of a MOU. These amendments may request additions to or
eliminate requests for responsibilities. An amendment request is
subject to the same notification and solicitation of comments
procedures as an application. This includes a requirement for the State
to submit the comments received and to note changes made to the request
based on the comments received. It also includes the applicable
Operating Administration's solicitation of comments on any amendments
prior to the decision on an application. This is meant to be consistent
with the requirement in Sec. 773.111(a) for an original application.
Proposed paragraph (b) would establish that a State may amend its
original application after 1 year of the executed MOU. The amendment
request is subject to the same notification and solicitation of
comments procedures as the application. This includes a requirement for
the State to submit the comments received and to note changes made to
the request based on the comments received. It also includes the
Operating Administration's solicitation of comments on the proposed
changes prior to the decision on the application.
Section 773.115--Renewals
Proposed Sec. 773.115 would describe the conditions of renewal for
Program participation. The proposed section would include requirements
for notification to DOT, solicitation of public comments, and
information needed for the Agencies' consideration.
Proposed paragraph (a) would require the participating State to
notify the appropriate Operating Administration of its intent to renew
no later than 1 year before the expiration of the MOU. The intent of
this provision is to have a venue similar to the pre-application
meeting to identify any issues and to go through the process
requirements.
The Agencies propose a process similar to the original application
review and approval process for the renewal. The proposal would require
the submission of renewal application no later than 6 months before a
MOU's expiration date. An application would need to capture any
relevant changed circumstances that have taken place since the original
application. The proposal would require a public participation process
for any renewal that would inform the State and the Operating
Administration of any modifications that may be needed in a State's
implementation of the assigned responsibilities. The proposal would
require the Operating Administration(s) to solicit comments on the
request and make documents under its consideration available for public
review. This may include an original application, a renewal
application, audit and monitoring reports, and a list of
responsibilities the relevant Operating Administration proposes to
retain. The relevant Operating Administration must consider comments it
receives, in addition to the record before it, in making a
determination to renew.
Paragraph (g) proposes to permit a continuance of a State's
participation in the Program after the expiration of its MOU in
exceptional situations. Specifically, such a continuance would be
intended to address situations where administrative delays or
emergencies would not allow the timely execution of a renewal MOU. This
provision would be an extraordinary measure that would be used when the
only remaining step for Program continuation is the execution of
signature or completion of administrative protocols. The Operating
Administration would have the discretion of exercising this
extraordinary measure.
Section 773.117--Termination
The Agencies are proposing to include Sec. 773.117 to address
termination of the assignment of portions or all Federal environmental
review responsibilities. The Agencies believe that it is difficult to
predict all circumstances where it might be necessary to terminate the
assignment for portions or all of the environmental review
responsibilities. Therefore, the proposed regulation does not specify
criteria for 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
The Agencies propose Appendix A as a list of example Federal
environmental review responsibilities that may be assigned under the
Program. A similar list exists in the current Appendix A of part 773.
Additional responsibilities have been added related to FRA
responsibilities to recognize the broadened scope of the Program.
49 CFR Part 264--Surface Transportation Project Delivery Program
Application Requirements and Termination
The Agencies propose to create a new part 264 in 49 CFR to include
a reference to 23 U.S.C. 327 and the Program application procedures in
23 CFR part 773. A cross reference would assist those potential FRA
applicants, State and Federal agencies, and the public.
49 CFR part 622--Environmental Impact and Related Procedures
The Agencies proposed to revise the authorities in subpart A--
Environmental Procedures, to include a reference to 23 U.S.C. 327 and
the application procedures in 23 CFR part 773. A cross reference would
assist those potential FTA applicants, State and Federal agencies, and
the public.
[[Page 53719]]
Rulemaking Analyses and Notices
All comments received before the close of business on the comment
closing date indicated above will be considered and will be available
for examination in the docket at the above address. Comments received
after the comment closing date will be filed in the docket and will be
considered to the extent practicable. In addition to late comments, the
Secretary will also continue to file relevant information in the docket
as it becomes available after the comment period closing date, and
interested persons should continue to examine the docket for new
material. The Agencies may publish a final rule at any time after close
of the comment period.
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 preliminarily that this action would not be a
significant regulatory action under section 3(f) of Executive Order
12866 and would not be significant within the meaning of DOT's
regulatory policies and procedures (44 FR 11032).
These proposed changes are not anticipated to adversely affect, in
a material way, any sector of the economy. This proposed rulemaking
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
In compliance with the Regulatory Flexibility Act (Pub. L. 96-354,
5 U.S.C. Sec. Sec. 601-612), the Agencies have evaluated the effects
of this proposed rule on small entities and anticipate that this action
would not have a significant economic impact on a substantial number of
small entities.
The proposed rule addresses application requirements for States
wishing to participate in the Program. As such, it affects only States,
and States are not included in the definition of small entity set forth
in 5 U.S.C. 601. 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 proposed rule would not impose unfunded mandates as defined by
the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48).
This proposed 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 one year (2 U.S.C. 1532). Further, in
compliance with the Unfunded Mandates Reform Act of 1995, the Agencies
would evaluate any regulatory action that might be proposed in
subsequent stages of the proceeding to assess the effects on State,
local, and Tribal governments and the private sector. Additionally, the
definition of ``Federal Mandate'' in the Unfunded Mandates Reform Act
excludes financial assistance of the type in which State, local, or
Tribal governments have authority to adjust their participation in the
program in accordance with changes made in the program by the Federal
Government.
Executive Order 13132 (Federalism Assessment)
Executive Order 13132 requires agencies to assure 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 national government and the
States, or on the distribution of power and responsibilities among the
various levels of government. This proposed action has been analyzed in
accordance with the principles and criteria contained in Executive
Order 13132, and the Agencies have preliminarily determined that this
proposed action would not warrant the preparation of a federalism
assessment. The Agencies have also determined that this proposed 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 national government is granting to the States the maximum
administrative discretion possible. We invite State and local
governments with an interest in this proposed rulemaking to comment on
the effect that adoption of specific proposals may have on State or
local governments.
Executive Order 13175 (Tribal Consultation)
The Agencies have analyzed this action under Executive Order 13175
and believe that the proposed 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 proposed rulemaking 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.
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 the proposed
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.
[[Page 53720]]
Executive Order 12372 (Intergovernmental Review)
The DOT's regulations implementing Executive Order 12372 (49 CFR
part 17) apply to this proposed rulemaking. Accordingly, the Agencies
solicit comments on this issue.
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 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
online at www.fhwa.dot.gov/enviornment/environmental_justice/ej_at_dot/order_56102a/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 online at
www.fhwa.dot.gov/legsregs/directives/orders/664023a.htm). 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 online at www.fta.dot.gov/legislation_law/12349_14740.html).
The Agencies have evaluated this proposed rule under the Executive
Order, the DOT Order, the FHWA Order, and the FTA Circular. The
Agencies have determined that the proposed application regulations, if
finalized, 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 proposed action 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 proposed 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 are required to 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 proposed action qualifies for categorical exclusions 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 which do not involve or lead directly to construction) for
FTA. In addition, FRA has determined that this proposed action is not a
major FRA action requiring the preparation of an environmental impact
statement or environmental assessment 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
proposed action would involve unusual circumstances or extraordinary
circumstances and have determined that this proposed 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
[[Page 53721]]
proposed rulemaking would not result in significant impacts on the
human environment.
Regulation Identification Number
A 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 record keeping requirements.
For the reasons discussed in the preamble, the Agencies propose to
amend 23 CFR chapter I and 49 CFR chapters II and VI as follows:
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 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. A
list of the Federal environmental laws for which a State may assume the
responsibilities of the Secretary under this Program include, but are
not limited to, the list of laws contained in Appendix A to this part.
Highway project means any undertaking to construct (including
initial construction, reconstruction, replacement, rehabilitation,
restoration, or other improvements) a highway, bridge, or tunnel, or
any portion thereof, including environmental mitigation activities,
which is authorized under title 23 U.S.C. 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.
Multimodal project means a project that falls under the
jurisdiction by law or special expertise of two or more DOT Operating
Administrations.
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, Research and Innovative
Technology 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.
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.
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 be a 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 of FHWA 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 being assumed;
(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
[[Page 53722]]
State laws is reviewable by a court of competent jurisdiction; and
(v) The State has the financial resources necessary to carry out
the responsibilities it is assuming.
(2) For railroad, public transportation, or multimodal 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.
(3) For railroad projects, the State must also be the State DOT.
(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
contains an example list of other environmental laws, regulations, and
E.O.s that may be assigned to and assumed by the State. 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 Tribes; and
(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.
(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;
(2) Projects that are at or cross international boundaries; and
(3) Projects classified as high risk under 23 U.S.C. 106(c)(4).
(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,
Regional, or Headquarters office of the applicable Operating
Administration(s) before soliciting public comments on its application.
(b) Public comments. 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 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 reasonably available to the public for inspection.
Solicitation of public comments 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 the FTA's responsibilities with respect to
public transportation projects must identify and solicit public
comments from potential recipients of assistance under chapter 53 of
title 49 U.S.C.
(2) The State must submit copies of all comments received with the
publication of the respective application(s). The State must summarize
the comments received and note any actions taken in response to the
public comments.
(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
laws that are comparable to FOIA. The State must ensure that it cures
any deficiency 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. 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 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 verify legal sufficiency
for the environmental document it produces; and
(iv) A discussion of how the State will identify and address those
projects that would normally require Headquarters prior concurrence of
the final environmental impact statement under 23 CFR 771.125(c).
(4) A verification of the personnel necessary to carry out the
authority that may be granted 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
[[Page 53723]]
functions needed to accept 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 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 that the State
can and will 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 being requested and to be assumed. Such consent must
be broad enough to include future changes in relevant Federal policies
and procedures to which FHWA would be subject or such consent would be
amended to include such future changes;
(7) Certification by the State's Attorney General, or other State
official legally empowered by State law, 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 the States response 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 signature approving the application.
(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, or has been requested to
assign, to the State 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,
or has been requested to assign, to the State the responsibilities of
FHWA with respect to one or more highway projects within the State
under NEPA.
(d) Multimodal project responsibilities. An eligible State may
submit an application for assignment of the Secretary's Federal
environmental review responsibilities for a multimodal project, group
of projects, or classes of projects. A State may seek only the
Secretary's Federal environmental review responsibilities with respect
to the highway, railroad, or public transportation components of the
multimodal project, group of projects, or classes of projects. A State
should submit the application as early as possible once the project is
identified as a multimodal project and must provide the information
required by paragraphs (a)(1) through (10) of this section, but with
respect to the highway, railroad, or public transportation components
of the multimodal project(s) at issue. In addition, the application
must include evidence that FHWA has assigned, or has been requested to
assign, to the State the responsibilities of FHWA with respect to one
or more highway projects within the State under NEPA. A State must
submit the application to each of the applicable Operating
Administrations from which the State is seeking assignment.
(e) Electronic submissions. All applications may be submitted
electronically.
(f) Joint application. A State may submit joint applications for
multiple modal responsibilities. A joint application must avoid
redundancies and duplication of information to the maximum extent
practicable. The application must distinguish the modal projects or
classes of projects of interest a State is seeking for assignment. 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 each applicable Operating
Administration.
(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 must solicit public comments 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 may include the State's application,
any additional supporting materials, and a list of responsibilities
sought by the State that the Operating Administration 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 approves the application of a
State, then the Operating Administration will invite the State to enter
into a MOU.
(c) The State's participation in the Program is effective upon the
execution of the MOU. The Operating Administration's responsibilities
under 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.
(d) The MOU must have a term of not more than 5 years that may be
renewed pursuant to Sec. 773.115 of this part.
(e) The MOU and approved application must be published on a DOT Web
site and made 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 additional
projects, classes of projects, or more environmental review
responsibilities consistent with the requirements of this part.
[[Page 53724]]
(1) Prior to requesting any such amendment, the State must provide
notice and solicit public comments with respect to the intended
amendments in compliance with Sec. 773.107(b) of this part.
(2) In submitting the amendment to the appropriate Operating
Administration(s), the State must provide copies of all comments
received and note the changes, if any, that were made in response to
the comments.
(3) Consistent with Sec. 773.111(a) of this part, the appropriate
Operating Administration(s) must solicit public comments on the change
prior to approving the application.
(b) Upon execution of the MOU(s), a State may amend its application
to the appropriate Operating Administration(s) no earlier than 1 year
after the MOU has been executed 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 provide
notice and solicit public comments with respect to the intended
amendments in compliance with Sec. 773.107(b) of this part.
(2) In submitting the amendment to the appropriate Operating
Administration(s), the State must provide copies of all comments
received and note the changes, if any, that were made in response to
the comments.
(3) Consistent with Sec. 773.111(a) of this part, the appropriate
Operating Administration(s) must solicit public comments on the change
prior to approving the application.
Sec. 773.115 Renewals.
(a) A State planning to renew a MOU and to maintain the assumption
of the Operating Administration's responsibilities under NEPA and other
environmental laws must notify the appropriate Operating
Administration(s) of its intent to do so at least 12 months before the
expiration of the MOU.
(b) A State must submit an application to renew the MOU no later
than 180 days prior to the expiration of the MOU.
(c) An application to renew a MOU must:
(1) Describe any changes to the information submitted to meet Sec.
773.109(a)(1) through (5) and (a)(9) of this part for the applicable
Operating Administration(s);
(2) Provide up-to-date certifications required in Sec.
773.109(a)(6) through (7) of this part for the applicable Operating
Administration(s);
(3) Provide evidence of the public notification requirements in
paragraph (d) of this section; and
(4) Provide the State Governor's, or the Mayor's in the District of
Columbia, signature approving the application to renew the MOU.
(d) The State must give notice of its intent to renew its
participation in the Program and must solicit public comment in
compliance with Sec. 773.107(b) of this part.
(e) The appropriate 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 appropriate Operating Administration(s) must solicit public
comments on the renewal request and must consider comments received
before approving the State's renewal application. Materials made
available for this public review may include the State's original
application, the renewal application, any additional supporting
materials, 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) 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 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.
Pursuant to 23 U.S.C. 327 and any applicable conditions of the
Secretary's assignment of responsibilities to the State, either the
Secretary or the State may terminate the participation of the State in
the Program.
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
The NEPA, 42 U.S.C. 4321 et seq.
Regulations for Implementing the Procedural Provisions of NEPA at
40 CFR 1500-1508.
The FHWA/FTA Environmental Regulations at 23 CFR parts 771, 772 and
777.
The 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.
Noise
Noise Control Act of 1972, 42 U.S.C. 4901-4918.
Airport Noise and Capacity Act of 1990, 49 U.S.C. 4751-47533.
Compliance with the 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-757g.
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. 1801-1884.
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.
[[Page 53725]]
Emergency Wetlands Resources Act, 16 U.S.C. 3921 and 3921.
Wetlands Mitigation, 23 U.S.C. 119(g) and 133(b)(14).
Flood Disaster Protection Act, 42 U.S.C. 4001-4128.
Parklands
Section 4(f), 49 U.S.C. 303; 23 U.S.C. 138.
Land and Water Conservation Fund, 16 U.S.C. 460l-4-460l-11.
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 and DOT Implementing
These Executive Orders
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:
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 proposed rule is being issued pursuant to authority delegated
under 49 CFR 1.81.
Issued on: August 12, 2013.
Victor M. Mendez,
Administrator, Federal Highway Administration.
Peter Rogoff,
Administrator, Federal Transit Administration.
Joseph C. Szabo,
Administrator, Federal Railroad Administration.
[FR Doc. 2013-20912 Filed 8-29-13; 8:45 am]
BILLING CODE 4910-22-P