Assumption of Authorities

Gregory G. Nadeau
Federal Highway Administration
30 August 2016

[Federal Register Volume 81, Number 168 (Tuesday, August 30, 2016)]
[Notices]
[Pages 59715-59717]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-20818]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

[Docket No: FHWA-2016-0018]


Assumption of Authorities

AGENCY: Federal Highway Administration (FHWA); Department of 
Transportation (DOT).

ACTION: Notice; request for comments.

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SUMMARY: The Fixing America's Surface Transportation (FAST) Act builds 
on the authorities and requirements in the Safe, Accountable, Flexible, 
Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) 
and the Moving Ahead for Progress in the 21st Century Act (MAP-21). The 
FAST Act also builds on efforts under FHWA's Every Day Counts to 
accelerate delivery of surface transportation projects by 
institutionalizing best practices and expediting complex infrastructure 
projects.
    The Secretary, in cooperation with the States, must submit 
recommendations to the Committee on Transportation and Infrastructure 
of the House of Representatives and the Committee on Environment and 
Public Works of the Senate recommendations on legislation to permit the 
assumption of additional authorities by States. The FAST Act 
specifically asks for recommendations in the areas of real estate 
acquisition and project design.
    In order to implement section 1316 of the FAST Act, FHWA is 
soliciting feedback from States and other stakeholders on additional 
authorities to assume under title 23, including real estate acquisition 
and project design. The FHWA will collect suggestions during a 60-day 
period. At the end of that period, FHWA will assess suggestions prior 
to providing a Report to Congress.

DATES: Comments must be received by October 31, 2016.

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.
     Electronic Mail: Section1316FRN@Sharepointmail.dot.gov.
     Mail: U.S. Department of Transportation, Dockets 
Management Facility, Room W12-140, 1200 New Jersey Ave. SE., 
Washington, DC 20590- 0001.
     Hand Delivery: West Building Ground Floor, Room W12-140, 
1200 New Jersey Ave. SE., between 9 a.m. 5p.m., Monday through Friday, 
except Federal holidays. The telephone number is (202) 366-9329.
    All comments must include the docket number DOT-FHWA-2016-0018 at 
the beginning of the submission.

FOR FURTHER INFORMATION CONTACT: Mr. Michael Howell, Office of 
Information Technology Services, (202) 366-5707, 
michael.howell@dot.gov, Federal Highway Administration, 1200 New Jersey 
Avenue SE., Washington, DC 20590, Ms. Janet Myers, Office of Chief 
Counsel, 202-366-2019,

[[Page 59716]]

janet.myers@dot.gov, Federal Highway Administration, 1200 New Jersey 
Avenue SE., Washington, DC 20590, or Ms. Cynthia Essenmacher, Office of 
Infrastructure (Detail), Federal Highway Administration, 315 W. Allegan 
St., Ste. 201, Lansing, MI 48913, (517) 702-1839, 
cynthia.essenmacher@dot.gov, Office Hours are from 8:00 a.m. to 4:30 
p.m., e.t., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION: 

I. Background

    The FAST Act builds on the authorities and requirements in SAFETEA-
LU and MAP-21, and on efforts under FHWA's Every Day Counts in an 
effort to accelerate delivery of surface transportation projects by 
institutionalizing best practices and expediting complex infrastructure 
projects. This includes promoting the transition from FHWA project-
level ``full-oversight'' of the Federal-aid highway program (FAHP) to a 
risk-based approach to FHWA oversight activities. The FHWA's use of a 
risk-based approach to stewardship and oversight is intended to 
optimize the successful delivery of projects and to ensure compliance 
with Federal requirements by focusing FHWA resources on activities with 
the highest potential impacts on the success of the FAHP.
    Section 1316(a) of the FAST Act directs the Secretary of 
Transportation to use the authority under 23 U.S.C. 106(c) to the 
maximum extent practicable to allow a State to assume the 
responsibilities described in 23 U.S.C. 106(c) on both a project-
specific and programmatic basis. Section 1316 of the FAST Act seeks to 
expand the use of the 23 U.S.C. 106(c) authority for State assumption 
of responsibilities, and to solicit legislative recommendations for 
additional authorities for State assumption. Assumption is a key part 
of the transition to risk-based oversight of the FAHP. The Secretary, 
in cooperation with the States, must submit recommendations to the 
Committee on Transportation and Infrastructure of the House of 
Representatives and the Committee on Environment and Public Works of 
the Senate recommendations on legislation to permit the assumption of 
additional authorities by States. The FAST Act specifically asks for 
recommendations in the areas of real estate acquisition and project 
design.
    The FHWA may not assign its decisionmaking responsibilities to a 
State department of transportation (SDOT) unless authorized by law. 
Section 106(c) of title 23, United States Code (U.S.C.), authorizes the 
State to assume project responsibilities for design, plans, 
specifications, estimates, contract awards, and inspections. For 
projects that receive funding under title 23, U.S.C., and are on the 
National Highway System (NHS), including projects on the Interstate 
System, the State may assume the responsibilities unless FHWA, acting 
under a delegation of authority from the Secretary, determines that the 
assumption is not appropriate (23 U.S.C. 106(c)(1)). For non-NHS 
projects, States must assume such responsibilities (23 U.S.C. 
106(c)(2)).
    Section 106(c)(3) requires FHWA and the SDOT to enter into an 
agreement relating to the extent to which the SDOT assumes project and 
program responsibilities. This Stewardship and Oversight Agreement (S&O 
Agreement) includes information on which entity is responsible for 
specific project approvals and related responsibilities. The S&O 
Agreement also contains provisions relating to FHWA oversight of the 
FAHP, as part of the oversight program required by 23 U.S.C. 106(g).
    In 2015 and 2016, all S&O Agreements with the SDOTs were updated 
and executed. The new S&O Agreements contain specific project and 
program level assumptions of responsibilities agreed upon between FHWA 
and the respective SDOTs (Attachment A). Examples of responsibilities 
assumed by some States include approvals and related responsibilities 
affecting real property as provided in 23 CFR 710.201(i) and any 
successor regulation in 23 CFR part 710.
    The agreements also include a broader list of title 23 program 
actions and agency points of contact (Attachment B). In addition, some 
States have assumed authorities under other statutory provisions, such 
as National Environmental Policy Act categorical exclusion approval 
actions assigned though a programmatic agreement pursuant to Section 
1318(d) of MAP-21 and 23 CFR 771.117(g).
    Commenters may wish to consider Attachments A & B, as well as other 
authorities that presently permit or prohibit State assumption, when 
developing their comments on additional authorities for SDOTs to 
assume. The S&O Agreements are available at the following Web site: 
http://www.fhwa.dot.gov/federalaid/stewardship/.

II. Objectives of This Notice

    The FHWA is soliciting feedback from States and other stakeholders 
on additional authorities to permit States to assume responsibilities 
of the Secretary under title 23, U.S.C., including real estate 
acquisition and project design. The intent of this Notice is to seek 
feedback on ways in which FHWA could change existing regulations, 
policies, guidance, and/or administrative practices to better reflect 
the legislative purpose of section 1316, and to seek suggestions on 
legislative changes meeting the requirements of section 1316(b) of the 
FAST Act. Section 1316(b) requires the Secretary, in cooperation with 
the States, to submit recommendations for legislation to permit the 
assumption of additional authorities by States, including with respect 
to real estate acquisition and project design. This notice gives States 
and other stakeholders an opportunity to share comments and make 
recommendations to allow further State assumption of authorities for 
any project phase.

III. Request for Comments

    In accordance with section 1316 of the FAST Act, FHWA seeks input 
from States and other stakeholders on what legislation, regulations, or 
policy they believe would accelerate project delivery. Recommendations 
may address any aspect of the FAHP, including, but not limited to, 
project design, real estate acquisition, plans, specifications, 
estimates, contract awards, and inspection of projects, on both a 
project-specific and programmatic basis.
    The FHWA is soliciting feedback from States and other stakeholders 
on additional authorities States may wish to assume under title 23, 
including real estate acquisition and project design. The FHWA's goal 
is to understand which additional authorities of the Secretary States 
might wish to assume, and what revisions to existing legislation, 
regulations, policies, guidance and/or administrative practices are 
needed to permit such assumptions. Specifically, FHWA welcomes 
suggestions on:
    (1) Additional authorities States could assume for project plans, 
specifications, estimates, contract awards, and inspection of projects,
    (2) Additional authorities States could assume for the real estate 
acquisition and project design process, and
    (3) Additional project or program level authorities, including new 
laws, regulations and policies, that would accelerate project delivery.
    Commenters are encouraged to address any or all of the areas above. 
In responding, commenters may wish to address: Current assumptions 
contained in State S&O agreements, the additional responsibilities the 
commenter would like States to be able to assume, the

[[Page 59717]]

commenter's specific goals for proposed assumption of additional 
authorities, changes to legislation, non-legislative actions FHWA might 
take to achieve those goals, the benefits and costs associated with the 
proposed assumption of authority, whether the proposal affects only 
FHWA or may have impacts on the responsibilities of other Federal 
agencies, the rationale and evidence to support the recommendation, and 
the roles of other stakeholders. Legislative recommendations and 
specific, actionable proposals for the revision of existing 
regulations, policies, guidance, and/or administrative practices are 
most useful. As a result, commenters are encouraged to focus on matters 
within the control of FHWA and Congress.

    Issued on: August 22, 2016.
Gregory G. Nadeau,
Administrator, Federal Highway Administration.
[FR Doc. 2016-20818 Filed 8-29-16; 8:45 am]
 BILLING CODE 4910-22-P