Proposed Amendment to the Third Renewed Memorandum of Understanding (MOU) Assigning Certain Federal Environmental Responsibilities to the State of California, Including National Environmental Policy Act (NEPA) Authority for Certain Categorical Exclusions (CEs)

Vincent Mammano
Federal Highway Administration
30 November 2016

[Federal Register Volume 81, Number 230 (Wednesday, November 30, 2016)]
[Notices]
[Pages 86376-86378]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-28800]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

[Docket No. FHWA-2016-0035]


Proposed Amendment to the Third Renewed Memorandum of 
Understanding (MOU) Assigning Certain Federal Environmental 
Responsibilities to the State of California, Including National 
Environmental Policy Act (NEPA) Authority for Certain Categorical 
Exclusions (CEs)

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Notice of proposed amendment, request for comments.

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[[Page 86377]]

SUMMARY: The FHWA and the State of California acting by and through its 
Department of Transportation (Caltrans), propose an amendment to the 
Memorandum of Understanding (MOU) authorizing the State's participation 
in the 23 U.S.C. 326 program. This program allows FHWA to assign to 
States its authority and responsibility for determining whether certain 
designated activities within the geographic boundaries of the State are 
categorically excluded from preparation of an Environmental Assessment 
or an Environmental Impact Statement under the National Environmental 
Policy Act. The parties propose to amend the MOU to make the litigation 
provisions consistent with the 23 U.S.C. 327 program MOU and to allow a 
90 day suspension of the program, giving the State an opportunity to 
renew its waiver of sovereign immunity and acceptance of Federal court 
jurisdiction. The program will resume upon the State's recertification 
that the sovereign immunity waiver and acceptance of Federal court 
jurisdiction is in place.

DATES: Comments must be received on or before December 30, 2016.

ADDRESSES: You may submit comments by any of the methods described 
below. To ensure that you do not duplicate your submissions, please 
submit them by only one of the means below. Electronic or facsimile 
comments are preferred because Federal offices experience intermittent 
mail delays due to security screening.
    Federal eRulemaking Portal: Go to Web site: http://www.regulations.gov/. Follow the instructions for submitting comments 
on the DOT electronic docket site (FHWA-2016-0035).
    Facsimile (Fax): 1-202-493-2251.
    Mail: Docket Management Facility; U.S. Department of 
Transportation, 1200 New Jersey Avenue SE., Washington, DC 20590.
    Hand Delivery: 1200 New Jersey Avenue SE., Washington, DC 20590 
between 9 a.m. and 5 p.m., Eastern Time, Monday through Friday, except 
Federal holidays.
    For access to the docket to view a complete copy of the proposed 
MOU, or to read background documents or comments received, go to http://www.regulations.gov/ at any time or to 1200 New Jersey Avenue SE., 
Washington, DC 20590, between 9 a.m. and 5 p.m., Eastern Time, Monday 
through Friday, except for Federal holidays.
    Instructions: You must include the agency name and docket number 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: Shawn Oliver; by email at 
shawn.oliver@dot.gov or by telephone at 916-498-5048. The FHWA 
California Division Office's normal business hours are 8 a.m. to 4:30 
p.m. (Pacific Time), Monday-Friday, except for Federal holidays. For 
the State of California: Tammy Massengale; by email at 
tammy.massengale@dot.ca.gov or by telephone at 916-653-5157. State 
business hours are the same as above although State holidays may not 
completely coincide with Federal holidays.

SUPPLEMENTARY INFORMATION: 

Electronic Access

    Internet users may reach the Office of the Federal Register's home 
page at: http://www.archives.gov/ and the Government Printing Office's 
database: http://www.fdsys.gov/. An electronic version of the proposed 
MOU may be downloaded by accessing the DOT DMS docket, as described 
above, at http://www.regulations.gov/.

Background

    Section 326 of Title 23 U.S. Code, creates a program that allows 
the Secretary of the U.S. Department of Transportation (Secretary) to 
assign, and a State to assume, responsibility for determining whether 
certain Federal highway projects are included within classes of action 
that are categorically excluded (CE) from requirements for 
Environmental Assessments or Environmental Impact Statements pursuant 
to the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 
et seq. In addition, this program allows the assignment of other 
environmental review requirements applicable to Federal highway 
projects, except with respect to government-to-government consultations 
with federally recognized Indian tribes (23 U.S.C. 326(b)(1)). The FHWA 
retains responsibility for conducting formal government-to-government 
consultation with federally recognized Indian tribes, which is required 
under some of the above-listed laws and Executive Orders. The State may 
assist FHWA with formal consultations, with consent of a tribe, but 
FHWA remains responsible for the consultation. The Secretary delegated 
his authority to FHWA, which acts on behalf of the Secretary with 
respect to these matters.
    The FHWA renewed California's participation in this program for a 
third time on May 31, 2016. The original MOU became effective on June 
7, 2007, for an initial term of three (3) years. The first renewal 
followed on June 7, 2010, and the second renewal followed on June 7, 
2013. The third MOU renewal has an expiration date on May 31, 2019.
    The FHWA and Caltrans propose three modifications to the MOU. 
First, the parties propose to modify Stipulations IV.G.5 and IV.G.9 
with regards to coordination on settlements and appeals to make them 
consistent with the draft MOU for participation in the 23 U.S.C. 327 
Surface Transportation Project Delivery Program. The draft MOU for that 
Program can be accessed in Docket No. FHWA-2016-0019.
    Second, Stipulation V.B. of the MOU contains a termination clause 
stating that the State's authority to participate in the program will 
end on January 1, 2017, unless the California Legislature takes 
affirmative action to extend the sovereign immunity waiver under the 
Eleventh Amendment of the U.S. Constitution. The parties propose an 
amendment that establishes a process to address a possible temporary 
lapse in the State's statutory consent to Federal jurisdiction and 
waiver of sovereign immunity. If the State does not provide consent to 
Federal court jurisdiction and waive sovereign immunity by December 31, 
2016, this MOU will be suspended and Caltrans will not be able to make 
any NEPA decisions or implement any of the environmental review 
responsibilities assigned under the MOU. The FHWA and Caltrans propose 
a temporary suspension not to exceed 90 days to provide time for the 
State to address the deficiency. In the event that the State does not 
take the necessary action and Caltrans does not provide adequate 
certification within the time period provided, the State's 
participation in the Program will be terminated. This language is the 
same as the one proposed in the draft MOU for the Surface 
Transportation Project Delivery Program (Docket No. FHWA-2016-0019).
    Third, the parties propose an amendment to Stipulation language to 
eliminate unnecessary paperwork. The current MOU requires a Federal 
Register notice that announces the agency's decision and execution of 
the MOU. The parties believe that requiring publication in the Federal 
Register of the decision is unnecessary. Publication of the final MOU 
through other means, such as in the State's public Web site, would be a 
more effective means of disseminating the outcome of this process.
    The FHWA will consider the comments submitted on the proposed

[[Page 86378]]

MOU when making its decision on whether to execute this renewal MOU. 
The FHWA will make the final, executed MOU publicly available.

(Catalog of Federal Domestic Assistance Program Number 20.205, 
Highway Planning and Construction. The regulations implementing 
Executive Order 12372 regarding intergovernmental consultation on 
Federal programs and activities apply to this program)

    Authority:  23 U.S.C. 326; 42 U.S.C. 4331, 4332; 23 CFR 771.117; 
49 CFR 1.85; 40 CFR 1507.3, 1508.4.

    Issued on: November 23, 2016.
Vincent Mammano,
California Division Administrator, Federal Highway Administration.
[FR Doc. 2016-28800 Filed 11-29-16; 8:45 am]
 BILLING CODE 4910-22-P