Application From the State of Alaska to the Surface Transportation Project Delivery Program and Proposed Memorandum of Understanding (MOU) Assigning Environmental Responsibilities to the State

Application From the State of Alaska to the Surface Transportation Project Delivery Program and Proposed Memorandum of Understanding (MOU) Assigning Environmental Responsibilities to the State

Application From the State of Alaska to the Surface Transportation Project Delivery Program and Proposed Memorandum of Understanding (MOU) Assigning Environmental Responsibilities to the State

Brandye L. Hendrickson
Federal Highway Administration
25 August 2017

[Federal Register Volume 82, Number 164 (Friday, August 25, 2017)]
[Notices]
[Pages 40625-40639]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-18066]

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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

[Docket No. FHWA-2017-0024]

Application From the State of Alaska to the Surface
Transportation Project Delivery Program and Proposed Memorandum of
Understanding (MOU) Assigning Environmental Responsibilities to the
State

AGENCY: Federal Highway Administration (FHWA), U.S. Department of
Transportation (USDOT).

ACTION: Notice of proposed MOU and request for comments.

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SUMMARY: This notice announces that FHWA has received and reviewed an
application from the Alaska Department of Transportation and Public
Facilities (DOT&PF) requesting participation in the Surface
Transportation Project Delivery Program (Program). This Program allows
for FHWA to assign, and the State to assume, responsibilities under the
National Environmental Policy Act of 1969 (NEPA), and all or part of
FHWA's responsibilities for environmental review, consultation, or
other actions required under any Federal environmental law with respect
to one or more Federal highway projects within the State. The FHWA has
determined the application to be complete and developed a draft MOU
with DOT&PF outlining how the State would implement the Program with
FHWA oversight. The FHWA invites the public to comment on DOT&PF's
request, including its application and the proposed MOU, which includes
the proposed assignments and assumptions of environmental review,
consultation, and other activities.

DATES: Please submit comments by September 25, 2017.

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.
Facsimile (Fax): 1-202-493-2251.
Mail: Docket Management Facility; U.S. Department of
Transportation, 1200 New Jersey Ave. SE., West Building Ground Floor
Room W12-140, Washington, DC 20590-0001.
Hand Delivery: West Building Ground Floor, Room W12-140,
1200 New Jersey Ave. SE., Washington, DC 20590 between 9:00 a.m. and
5:00 p.m. e.t., Monday through Friday, except 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:
Tim Haugh, Environmental Program Manager, Federal Highway
Administration Alaska Division, P.O. Box 21648, 709 West 9th Street,
Room 851, Juneau, AK, 99802, 8:00 a.m.-4:30 p.m. (AKDT), (907) 586-
7418, Tim.Haugh@dot.gov.
Taylor C. Horne, Statewide Environmental Program Manager, Statewide
Environmental Office, Alaska Department of Transportation and Public
Facilities, P.O. Box 112500, 3132 Channel Drive, Juneau, AK, 99811,
8:00 a.m.-4:30 p.m. (AKDT), (907) 465-6957, NEPA@alaska.gov.

SUPPLEMENTARY INFORMATION:

Electronic Access

An electronic copy of this notice may be downloaded from the
Federal Register's home page at http://www.archives.gov. An electronic
version of the application materials and proposed MOU may be downloaded
by accessing the online docket, as described above, at http://www.regulations.gov/.

Background

Section 327 of title 23, United States Code (23 U.S.C. 327), allows
the Secretary of the U.S. Department of Transportation (Secretary) to
assign, and a State to assume, responsibility for all or part of FHWA's
responsibilities for environmental review, consultation, or other
actions required under the National Environmental Policy Act of 1969
(42 U.S.C. 4321 et seq.) and any Federal environmental law with respect
to one or more Federal-aid highway projects within the State. The FHWA
is authorized to act on behalf of the Secretary with respect to these
matters.
Under the proposed MOU, FHWA would assign to the State, through
DOT&PF, the responsibility for making decisions on highway projects
within the State of Alaska that are proposed to be funded with title 23
funds or otherwise require FHWA approval, and that require preparation
of a categorical exclusion determination, environmental assessment
(EA), or environmental impact statement (EIS) with the exception of the
following:
(1) EIS projects--67698 & 67877/0922005 & 0922008 Gravina Access,
71100/000S131 Juneau Access Improvements, 53014/0212015 Sterling
Highway: MP 45-60;
(2) highway projects authorized under 23 U.S.C. 202, 203, and 204,
unless the project will be designed and/or constructed by DOT&PF;
(3) projects that cross or are adjacent to international
boundaries;
(4) programs and projects advanced by direct recipients of Federal-
aid Highway Program funds other than DOT&PF, including but not limited
to recipients of: Recreational Trails program funds, TIGER
Discretionary grants, direct recipient Tribal projects, and the Shakwak
program;
(5) privately-funded or other Federal agency funded projects
requiring NEPA review as part of Interstate access approvals, unless
such projects will be designed and constructed by DOT&PF; and
(6) private requests for changes in controlled access, unless such
projects will be designed and constructed by DOT&PF.
The assignment also would give the State the responsibility to
conduct the following environmental review, consultation, and other
related activities for project delivery:

Air Quality

Clean Air Act, 42 U.S.C. 7401-7671q, with the exception of
project level conformity determinations

Alaska Specific

Alaska National Interest Lands Conservation Act (ANILCA),
Public Law 96-487, except any responsibilities under 16 U.S.C.
410hh(4)(d)

[[Page 40626]]

Executive Orders (E.O.) Relating to Highway Projects

E.O. 11593, Protection and Enhancement of the Cultural
Environment
E.O. 11988, Floodplain Management (except approving design
standards and determinations that a significant encroachment is the
only practicable alternative under 23 CFR parts 650.113 and 650.115)
E.O. 11990, Protection of Wetlands
E.O. 12898, Federal Actions to Address Environmental Justice
in Minority Populations and Low Income Populations
E.O. 13007, Indian Sacred Sites
E.O. 13112, Invasive Species, as amended by E.O. 13751,
Safeguarding the Nation from the Impacts of Invasive Species
E.O. 13175, Consultation and Coordination with Indian Tribal
Governments

FHWA-Specific

Efficient Project Reviews for Environmental Decision Making,
23 U.S.C. 139
Environmental Impact and Related Procedures, 23 CFR part 771
Planning and Environmental Linkages, 23 U.S.C. 168, with the
exception of those FHWA responsibilities associated with 23 U.S.C. 134
and 135
Programmatic Mitigation Plans, 23 U.S.C. 169, with the
exception of those FHWA responsibilities associated with 23 U.S.C. 134
and 135

Hazardous Materials Management

Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA), 42 U.S.C. 9601-9675
Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6901-
6992k
Superfund Amendments and Reauthorization Act (SARA), 42 U.S.C.
9671-9675

Historic and Cultural Resources

Archeological and Historic Preservation Act of 1974, as
amended, 54 USC 312501-312508
Archeological Resources Protection Act of 1979, 16 U.S.C.
470(aa)-(mm)
Native American Grave Protection and Repatriation Act
(NAGPRA), 25 U.S.C. 3001-3013; 18 U.S.C. 1170
Preservation of Historical and Archaeological Data, 54 U.S.C.
312501-312508
Section 106 of the National Historic Preservation Act of 1966,
as amended, 54 U.S.C. 306108.

Land

Landscaping and Scenic Enhancement (Wildflowers), 23 U.S.C.
319

Noise

Compliance with the noise regulations in 23 CFR part 772
Noise Control Act of 1972, 42 U.S.C. 4901-4918

Parklands and Other Special Land Uses

Land and Water Conservation Fund (LWCF) Act, 54 U.S.C. 200302-
200310
Section 4(f) of the Department of Transportation Act of 1966,
23 U.S.C. 138, 49 U.S.C. 303, and implementing regulations at 23 CFR
part 774

Social and Economic Impacts

American Indian Religious Freedom Act, 42 U.S.C. 19961
Farmland Protection Policy Act (FPPA), 7 U.S.C. 4201-4209

Water Resources and Wetlands

Clean Water Act, 33 U.S.C. 1251-1387
[cir] Section 319, 33 U.S.C. 1329
[cir] Section 401, 33 U.S.C. 1341
[cir] Section 404, 33 U.S.C. 1344
Emergency Wetlands Resources Act, 16 U.S.C. 3901 and 3921
FHWA wetland and natural habitat mitigation regulations, 23
CFR part 777
Flood Disaster Protection Act, 42 U.S.C. 4001-4130
Mitigation of Impacts to Wetlands and Natural Habitat, 23 CFR
part 777
Rivers and Harbors Act of 1899, 33 U.S.C. 403
Safe Drinking Water Act (SDWA), 42 U.S.C. 300f-300j-26
Wetlands Mitigation, 23 U.S.C. 119(g) and 133(b)(11)
Wild and Scenic Rivers Act, 16 U.S.C. 1271-1287

Wildlife

Anadromous Fish Conservation Act, 16 U.S.C. 757a-757f
Bald and Golden Eagle Protection Act, as amended, 16 U.S.C.
668-668c
Fish and Wildlife Coordination Act, 16 U.S.C. 661-667d
Magnuson-Stevens Fishery Conservation and Management Act of
1976, as amended, 16 U.S.C. 1801-1891d
Marine Mammal Protection Act, 16 U.S.C. 1361-1423h
Migratory Bird Treaty Act, 16 U.S.C. 703-712
Section 7 of the Endangered Species Act of 1973, 16 U.S.C.
1536
The MOU would allow DOT&PF to act in the place of FHWA in carrying
out the environmental review-related functions described above, except
with respect to government-to-government consultations with federally
recognized Indian tribes. The FHWA will retain responsibility for
conducting formal government-to-government consultation with federally
recognized Indian tribes, which is required under some of the listed
laws and executive orders. The DOT&PF will continue to handle routine
consultations with the tribes and understands that a tribe has the
right to direct consultation with the FHWA upon request. The DOT&PF
also may assist FHWA with formal consultations, with consent of a
tribe, but FHWA remains responsible for the consultation.
The DOT&PF will not assume FHWA's responsibilities for conformity
determinations required under Section 176 of the CAA (42 U.S.C. 7506),
or any responsibility under 23 U.S.C. 134 or 135, or under 49 U.S.C.
5303 or 5304.
A copy of the proposed MOU may be viewed on the online docket, as
described above, or may be obtained by contacting FHWA or the State at
the addresses provided above. A copy also may be viewed on DOT&PF's Web
site at: http://dot.alaska.gov/stwddes/desenviron/resources/nepa.shtml.
The FHWA Alaska Division, in consultation with FHWA Headquarters,
will consider the comments submitted when making its decision on the
proposed MOU. Any final MOU approved by FHWA may include changes based
on comments and consultations relating to the proposed MOU and will be
made publicly available.

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

Authority: 23 U.S.C. 327; 42 U.S.C. 4331, 4332; 23 CFR 771.101-
139; 23 CFR 773.109; 40 CFR 1507.3; and 49 CFR 1.85.

Issued on: August 21, 2017.
Brandye L. Hendrickson,
Acting Administrator, Federal Highway Administration.

[[Page 40627]]

MEMORANDUM OF UNDERSTANDING BETWEEN THE FEDERAL HIGHWAY ADMINISTRATION
AND THE ALASKA DEPARTMENT OF TRANSPORTATION AND PUBLIC FACILITIES
CONCERNING THE STATE OF ALASKA'S PARTICIPATION IN THE SURFACE
TRANSPORTATION PROJECT DELIVERY PROGRAM PURSUANT TO 23 U.S.C. 327

THIS MEMORANDUM OF UNDERSTANDING (MOU), entered into by and between
the FEDERAL HIGHWAY ADMINISTRATION (FHWA), an administration in the
UNITED STATES DEPARTMENT OF TRANSPORTATION (USDOT), and the STATE OF
ALASKA, acting by and through its ALASKA DEPARTMENT OF TRANSPORTATION
AND PUBLIC FACILITIES (DOT&PF), hereby provides as follows:
WITNESSETH
Whereas, Section 327 of Title 23 of the United States Code (U.S.C.)
establishes the Surface Transportation Project Delivery Program
(Program) that allows the Secretary of the United States Department of
Transportation (USDOT Secretary) to assign and states to assume the
USDOT Secretary's responsibilities under the National Environmental
Policy Act of 1969, 42 U.S.C. 4321, et seq. (NEPA), and all or part of
the USDOT Secretary's responsibilities for environmental review,
consultation, or other actions required by Federal environmental law
with respect to highway, public transportation, railroad, and
multimodal projects within the state; and
Whereas, 23 U.S.C. 327(b)(2) requires a state to submit an
application in order to participate in the Program; and
Whereas, on May 1, 2016, prior to submittal of its application to
FHWA, DOT&PF published notice of, and solicited public comment on, its
draft application to participate in the Program as required by 23
U.S.C. 327(b)(3), and addressed the comments received as appropriate;
and
Whereas, Alaska Statute 44.42.300 authorizes DOT&PF to participate
in the Program; and
Whereas, on July 12, 2016, the State of Alaska acting by and
through DOT&PF, submitted an application to FHWA with respect to
highway projects in the State of Alaska; and
Whereas, on DATE TBD, FHWA published a notice in the Federal
Register providing an opportunity for comment on its preliminary
decision to approve DOT&PF's application and solicited the views of
other appropriate Federal agencies concerning DOT&PF's application as
required by 23 U.S.C. 327(b)(5); and
Whereas, the USDOT Secretary, acting by and through FHWA pursuant
to 49 CFR 1.85(a)(3), has determined that DOT&PF's application meets
the requirements of 23 U.S.C. 327 with respect to the Federal
environmental laws and highway projects identified in this MOU.
Now, therefore, FHWA and DOT&PF agree as follows:

PART 1. PURPOSE OF MEMORANDUM OF UNDERSTANDING

1.1 Purpose

1.1.1 This MOU officially approves DOT&PF's application to participate
in the Program and is the written agreement required by 23 U.S.C.
327(a)(2)(A) and (c) under which the USDOT Secretary may assign, and
DOT&PF may assume, the responsibilities of the USDOT Secretary for
Federal environmental laws with respect to one or more highway projects
within the State of Alaska.
1.1.2 FHWA's decision to execute this MOU is based upon the
information, representations, and commitments contained in DOT&PF's May
31, 2016, application. As such, this MOU incorporates the application.
To the extent there is any conflict between this MOU and the
application, this MOU shall control.
1.1.3 This MOU shall be effective 5 days after signature of the final
MOU (Effective Date).
1.1.4 On the Effective Date, the MOU between DOT&PF and FHWA dated
September 18, 2015, concerning the State Assumption of Responsibility
for Categorical Exclusions under 23 U.S.C. 326 will terminate, and be
supplanted by this MOU. The Programmatic Agreements between DOT&PF and
FHWA dated April 13, 2012, concerning the processing of categorical
exclusions [PCE Agreements pursuant to 23 CFR 771.117(g)] will be
suspended for the duration of the MOU. The PCE Agreements may be
reinstated after the termination of this MOU if FHWA determines that
the PCE Agreements continue to be valid pursuant to applicable
statutory and regulatory authorities in effect at the time of MOU
termination.
1.1.5 Pursuant to 23 U.S.C. 327(c)(3)(B) and 327(c)(3)(C), and subpart
4.3 of this MOU, third parties may challenge DOT&PF's action in
carrying out environmental review responsibilities assigned under this
MOU. Otherwise, this MOU is not intended to, and does not, create any
new right or benefit, substantive or procedural, enforceable at law or
in equity by any third party against the State of Alaska, its
departments, agencies, or entities, its officers, employees, or agents.
This MOU is not intended to, and does not, create any new right or
benefit, substantive or procedural, enforceable at law or in equity by
any third party against the United States, its departments, agencies,
or entities, its officers, employees, or agents.

PART 2. [RESERVED]

PART 3. ASSIGNMENTS AND ASSUMPTIONS OF RESPONSIBILITY

3.1 Assignments and Assumptions of NEPA Responsibilities

3.1.1 Pursuant to 23 U.S.C. 327(a)(2)(A), on the Effective Date of this
MOU, FHWA assigns, and DOT&PF assumes, subject to the terms and
conditions set forth in 23 U.S.C. 327 and this MOU, all of the USDOT
Secretary's responsibilities for compliance with the National
Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321, et seq., with
respect to the highway projects specified under subpart 3.3. This
includes statutory provisions, regulations, policies, and guidance
related to the implementation of NEPA for Federal-aid highway projects
such as 23 U.S.C. 139, 40 CFR parts 1500-1508, USDOT Order 5610.1C, and
23 CFR part 771, as applicable.
3.1.2 On the cover page of each Environmental Assessment (EA), Finding
of No Significant Impact (FONSI), Environmental Impact Statement (EIS),
and Record of Decision (ROD) prepared under the authority granted by
this MOU, and for memoranda corresponding to any Categorical Exclusion
(CE) determination it makes, DOT&PF shall insert the following language
in a way that is conspicuous to the reader:

The environmental review, consultation, and other actions required
by applicable Federal environmental laws for this project are being, or
have been, carried out by DOT&PF pursuant to 23 U.S.C. 327 and a
Memorandum of Understanding dated [INSERT

[[Page 40628]]

DATE], and executed by FHWA and DOT&PF.

3.1.3 The DOT&PF shall disclose to the public and agencies, as part of
agency outreach and public involvement procedures, including any Notice
of Intent or scoping meeting notice, the disclosure in subpart 3.1.2
above.
3.2 Assignments and Assumptions of Responsibilities to Comply with
Federal Environmental Laws Other Than NEPA
3.2.1 Pursuant to 23 U.S.C. 327(a)(2)(B), on the Effective Date of this
MOU, FHWA assigns and DOT&PF assumes, subject to the terms and
conditions set forth in this MOU, all of the USDOT Secretary's
responsibilities under NEPA for environmental review, reevaluation,
consultation, or other action pertaining to the review or approval of
highway projects specified under subpart 3.3 of this MOU, required
under the following Federal environmental laws:

Air Quality

Clean Air Act, 42 U.S.C. 7401-7671q, with the exception of
project level conformity determinations

Alaska Specific

Alaska National Interest Lands Conservation Act (ANILCA),
Public Law 96-487, except any responsibilities under 16 U.S.C.
410hh(4)(d)

Executive Orders (E.O.) Relating to Highway Projects

FHWA-Specific

Hazardous Materials Management

Historic and Cultural Resources

Archeological and Historic Preservation Act of 1974, as
amended, 54 U.S.C. 312501-312508
Archeological Resources Protection Act of 1979, 16 U.S.C.
470(aa)-(mm)
Native American Grave Protection and Repatriation Act
(NAGPRA), 25 U.S.C. 3001-3013; 18 U.S.C. 1170
Preservation of Historical and Archaeological Data, 54 U.S.C.
312501-312508
Section 106 of the National Historic Preservation Act of 1966,
as amended, 54 U.S.C. 306108.

Land

Landscaping and Scenic Enhancement (Wildflowers), 23 U.S.C.
319

Noise

Compliance with the noise regulations in 23 CFR part 772
Noise Control Act of 1972, 42 U.S.C. 4901-4918

Parklands and Other Special Land Uses

Land and Water Conservation Fund (LWCF) Act, 54 U.S.C. 200302-
200310
Section 4(f) of the Department of Transportation Act of 1966,
23 U.S.C. 138, 49 U.S.C. 303 and implementing regulations at 23 CFR
part 774

Social and Economic Impacts

American Indian Religious Freedom Act, 42 U.S.C. 19961
Farmland Protection Policy Act (FPPA), 7 U.S.C. 4201-4209

Water Resources and Wetlands

Clean Water Act, 33 U.S.C. 1251-1387
[cir] Section 319, 33 U.S.C. 1329
[cir] Section 401 , 33 U.S.C. 1341
[cir] Section 404, 33 U.S.C. 1344
Emergency Wetlands Resources Act, 16 U.S.C. 3901 and 3921
FHWA wetland and natural habitat mitigation regulations, 23
CFR part 777
Flood Disaster Protection Act, 42 U.S.C. 4001-4130
Mitigation of Impacts to Wetlands and Natural Habitat, 23 CFR
part 777
Rivers and Harbors Act of 1899, 33 U.S.C. 403
Safe Drinking Water Act (SDWA), 42 U.S.C. 300f-300j-26
Wetlands Mitigation, 23 U.S.C. 119(g) and 133(b)(11)
Wild and Scenic Rivers Act, 16 U.S.C. 1271-1287

Wildlife

Anadromous Fish Conservation Act, 16 U.S.C. 757a-757f
Bald and Golden Eagle Protection Act, as amended, 16 U.S.C.
668-668c
Fish and Wildlife Coordination Act, 16 U.S.C. 661-667d
Magnuson-Stevens Fishery Conservation and Management Act of
1976, as amended, 16 U.S.C. 1801-1891d
Marine Mammal Protection Act, 16 U.S.C. 1361-1423h
Migratory Bird Treaty Act, 16 U.S.C. 703-712
Section 7 of the Endangered Species Act of 1973, 16 U.S.C.
1536
3.2.2 Any FHWA environmental review responsibility not explicitly
listed above and assumed by DOT&PF shall remain the responsibility of
FHWA unless the responsibility is added by written agreement of the
parties through the amendment process established in Part 14 of this
MOU and pursuant to 23 CFR 773.113(b). This provision shall not be
interpreted to abrogate DOT&PF's responsibilities to comply with the
requirements of any Federal environmental laws that apply directly to
DOT&PF independent of FHWA's involvement (through Federal assistance or
approval).
3.2.3 The USDOT Secretary's responsibilities for government-to-
government consultation with Indian tribes, as defined in 36 CFR
800.16(m), are not assigned to or assumed by DOT&PF under this MOU. The
FHWA remains responsible for government-to-government consultation,
including initiation of government-to-government consultation
consistent with Executive Order 13175--Consultation and Coordination
with

[[Page 40629]]

Indian Tribal Governments, unless otherwise agreed as described below.
A notice from DOT&PF to an Indian tribe advising the tribe of a
proposed activity is not considered ``government-to-government
consultation'' within the meaning of this MOU. If a project-related
concern or issue is raised in a government-to-government consultation
process with an Indian tribe, as defined in 36 CFR 800.16(m), and is
related to NEPA or another Federal law for which DOT&PF has assumed
responsibilities under this MOU, and either the Indian tribe or FHWA
determines that the issue or concern will not be satisfactorily
resolved by DOT&PF, then FHWA may withdraw the assignment of all or
part of the responsibilities for processing the project. In this case,
the provisions of subpart 9.1 of this MOU concerning FHWA initiated
withdrawal of an assigned project or part of an assigned project will
apply.
This MOU is not intended to abrogate, or prevent future entry into an
agreement among DOT&PF, FHWA, and a tribe under which the tribe agrees
to allow DOT&PF to consult for highway projects in Alaska. However,
such agreements are administrative in nature and do not relieve FHWA of
its legal responsibility for government-to-government consultation.
3.2.4 Nothing in this MOU shall be construed to permit DOT&PF's
assumption of the USDOT Secretary's responsibilities for conformity
determinations required by Section 176 of the Clean Air Act (42 U.S.C.
7506) or any responsibility under 23 U.S.C. 134 or 135, or under 49
U.S.C. 5303 or 5304.
3.2.5 On the cover page of each biological evaluation or assessment,
historic properties or cultural resources report, Section 4(f)
evaluation, or other analyses prepared under the authority granted by
this MOU, DOT&PF shall insert the following language in a way that is
conspicuous to the reader or include in a CE project record:

3.2.6 The DOT&PF shall disclose to the public and agencies, as part of
agency outreach and public involvement procedures, the disclosure in
subpart 3.2.5 of this MOU.
3.2.7 The DOT&PF will continue to adhere to the original terms of a
Biological Opinion (BO) issued by the U.S. Fish and Wildlife Service
(USFWS) or National Marine Fisheries Service (NMFS) or both prior to
the Effective Date of this MOU, so long as the original BO terms are
not amended or revised. Any revisions or amendments to a BO made after
the Effective Date of this MOU would be DOT&PF's responsibility. The
DOT&PF agrees to assume FHWA's environmental review role and
responsibilities as identified in existing interagency agreements among
DOT&PF, USFWS, NMFS, and FHWA, and/or negotiate new agreements with
USFWS and NMFS, if needed. The DOT&PF agrees to assume FHWA's
Endangered Species Act Section 7 responsibilities of consultations
(formal and informal) ongoing as of the Effective Date of this MOU.
3.2.8 The DOT&PF will not make any determination that an action
constitutes a constructive use of a publicly owned park, public
recreation area, wildlife refuge, waterfowl refuge, or historic site
under 49 U.S.C. 303/23 U.S.C. 138 [Section 4(f)] without first
consulting with FHWA and obtaining FHWA's approval of such
determination.

3.3 Highway Projects

3.3.1 Except as provided in subpart 3.3.2 of this MOU or otherwise
specified in this subpart, the assignments and assumptions of the USDOT
Secretary's responsibilities under subparts 3.1 and 3.2 of this MOU
shall apply to the environmental review, consultation, or any other
action pertaining to the environmental review or approval of the
following classes of highway projects located within the State of
Alaska. The definition of ``highway project'' is found at 23 CFR
773.103, and for purposes of this MOU, ``highway project'' includes
eligible preventative maintenance activities. The DOT&PF shall conduct
any reevaluation required by 23 CFR 771.129 for projects for which
construction is not completed prior to the date of this MOU, in
accordance with the provisions of this MOU. Prior to approving any CE
determination, FONSl, final EIS, or final EIS/ROD, DOT&PF shall ensure
and document that for any proposed project the design concept, scope,
and funding are consistent with the current Transportation Improvement
Plan (TIP), Regional Transportation Plan (RTP), or Metropolitan
Transportation Plan (MTP), as applicable.
A. All Class I, or EIS projects, that are funded by FHWA or require
FHWA approvals.
B. All Class II, or CE projects, that are funded by FHWA or require
FHWA approvals.
C. All Class III, or EA projects, that are funded by FHWA or
require FHWA approvals.
D. The DOT&PF will not assume the NEPA responsibilities of other
Federal agencies. However, DOT&PF may use or adopt another Federal
agency's NEPA analysis or documents consistent with 40 CFR parts 1500--
1508, current law, and USDOT and FHWA regulations, policies, and
guidance.
3.3.2 The following are specifically excluded from the list in subpart
3.3.1 of highway projects:
A. Any Federal Lands Highway projects authorized under 23 U.S.C.
202, 203, and 204, unless such projects will be designed and
constructed by DOT&PF.
B. Any project that crosses or is adjacent to international
boundaries. For purposes of this MOU, a project is considered
``adjacent to international boundaries'' if it requires the issuance of
a new, or the modification of an existing, Presidential Permit by the
U.S. Department of State.
C. Programs and projects advanced by direct recipients of Federal-
aid Highway Program funds other than DOT&PF, including but not limited
to:
1. Recreational Trails program;
2. TIGER Discretionary grants;
3. Direct recipient tribal projects; and
4. Shakwak program.
D. Privately-funded or other agency funded projects requiring NEPA
review as part of Interstate access approvals, unless such projects
will be designed and constructed by DOT&PF.
E. NEPA review for private requests for changes in controlled
access, unless such projects will be designed and constructed by
DOT&PF.
F. This assignment does not include

[[Page 40630]]

the environmental review associated with the development and approval
of a CE, EA, FONSI, Draft EIS, FEIS, or ROD for the following projects:
1. 67698 & 67877/0922005 & 0922008 Gravina Access;
2. 71100/000S131 Juneau Access Improvements; and
3. 53014/0212015 Sterling Highway: MP 45-60.
The DOT&PF will be responsible for any additional environmental
review of these projects after the expiration of the statute of
limitations for these projects in accordance with 23 U.S.C. 139(l).

3.4 Limitations

3.4.1 As provided at 23 U.S.C. 327(e), DOT&PF shall be solely
responsible and solely liable for carrying out, in lieu of and without
further approval by FHWA, all of the responsibilities it has assumed
under this MOU.
3.4.2 As provided at 23 U.S.C. 327(a)(2)(D), any highway project or
responsibility of the USDOT Secretary that is not explicitly assumed by
DOT&PF under subpart 3.3.1 of this MOU remains the responsibility of
the USDOT Secretary.

PART 4. CERTIFICATIONS AND ACCEPTANCE OF JURISDICTION

4.1 Certifications

4.1.1 The DOT&PF hereby makes the following certifications:
A. The DOT&PF has the legal authority to accept all the assumptions
of responsibility identified in this MOU;
B. The DOT&PF has the legal authority to take all actions necessary
to carry out all of the responsibilities it has assumed under this MOU;
C. The DOT&PF has the legal authority to execute this MOU;
D. The State of Alaska has laws in effect that are comparable to
the Freedom of Information Act (FOIA) at 5 U.S.C. 552, and those laws
are found in the Alaska Public Records Act at Alaska Statutes Title 40,
Chapter 25; and
E. The Alaska Public Records Act provides that any decision
regarding the public availability of a document under that Act is
reviewable by an Alaska court of competent jurisdiction.

4.2 State Commitment of Resources

4.2.1 As required by 23 U.S.C. 327(c)(3)(D), DOT&PF will maintain the
financial resources necessary to carry out the responsibilities it is
assuming. The DOT&PF asserts, and FHWA agrees, that the summary of
financial resources contained in DOT&PF's application, dated July 12,
2016, appears to be adequate for this purpose. Should FHWA determine,
after consultation with DOT&PF, that DOT&PF's financial resources are
inadequate to carry out the USDOT Secretary's responsibilities, DOT&PF
will take appropriate action to obtain the additional financial
resources needed to carry out these responsibilities. If DOT&PF is
unable to obtain the necessary additional financial resources, DOT&PF
shall inform FHWA, and this MOU will be amended to assign only the
responsibilities that are commensurate with DOT&PF's financial
resources.
4.2.2 Similarly, DOT&PF has and will maintain adequate organizational
and staff capability, including competent and qualified consultants
where necessary or desirable, to effectively carry out the
responsibilities it has assumed under this MOU. This includes, without
limitation:
A. Using appropriate environmental, technical, legal, and
managerial expertise;
B. Devoting adequate staff resources; and
C. Demonstrating, in a consistent manner, the capacity to perform
DOT&PF's assumed responsibilities under this MOU and applicable Federal
laws.
Should FHWA determine, after consultation with DOT&PF, that
DOT&PF's organizational and staff capability is inadequate to carry out
the USDOT Secretary's responsibilities, DOT&PF will take appropriate
action to obtain adequate organizational and staff capability to carry
out these responsibilities. If DOT&PF is unable to obtain adequate
organizational and staff capability, DOT&PF shall inform FHWA, and the
MOU will be amended to assign only the responsibilities that are
commensurate with DOT&PF's available organizational and staff
capability. Should DOT&PF choose to meet these requirements, in whole
or in part, with consultant services, including outside counsel, DOT&PF
shall maintain on its staff an adequate number of trained and qualified
personnel, including counsel provided by the Alaska Department of Law,
to oversee the consulting work.
4.2.3 When carrying out the requirements of Section 106 of the National
Historic Preservation Act (NHPA), as amended, DOT&PF staff (including
consultants) shall comply with 36 CFR 800.2(a)(1). All actions that
involve identification, evaluation, analysis, recording, treatment,
monitoring, or disposition of historic properties, or that involve the
reporting or documentation (including 36 CFR 800.11) of such actions in
the form of reports, forms, or other records, shall be carried out by
or under the direct supervision of a person or persons who meet the
Secretary of the Interior's Professional Qualifications Standards (36
CFR part 61, Appendix A). The DOT&PF shall ensure that all
documentation required under 36 CFR 800.11 is reviewed and approved by
a staff member or consultant who meets the Professional Qualifications
Standards.

4.3 Federal Court Jurisdiction

4.3.1 As required under 23 U.S.C. 327(c)(3)(B), and authorized by
Alaska Statute 44.23.020(g), DOT&PF hereby expressly consents, on
behalf of the State of Alaska, to accept the jurisdiction of the
Federal courts in cases that involve the compliance, discharge, and
enforcement of any responsibility of the USDOT Secretary assumed by
DOT&PF under Part 3 of this MOU. The consent to Federal court
jurisdiction shall remain valid after termination of this MOU, or
FHWA's withdrawal of assignment of the USDOT Secretary's
responsibilities, for any decision or approval made by DOT&PF pursuant
to an assumption of responsibility under this MOU. The DOT&PF
understands and agrees that, in accordance with 23 U.S.C. 327, the
United States district court shall have exclusive jurisdiction over any
civil action against the State of Alaska alleging a failure to carry
out any responsibility assumed under this MOU, which constitutes a
limited waiver of the State of Alaska's immunity under the Eleventh
Amendment to the U.S. Constitution.

PART 5. APPLICABILITY OF FEDERAL LAW

5.1 Procedural and Substantive Requirements

5.1.1 As provided at 23 U.S.C. 327(a)(2)(C), in assuming the USDOT
Secretary's responsibilities

[[Page 40631]]

under this MOU, DOT&PF shall be subject to the same procedural and
substantive requirements that apply to the USDOT Secretary in carrying
out these responsibilities. Such procedural and substantive
requirements include, but are not limited to, Federal statutes and
regulations; Executive Orders issued by the President of the United
States; USDOT Orders; Council on Environmental Quality (CEQ)
Regulations for Implementing the Procedural Provisions of NEPA (40 CFR
parts 1500-1508); FHWA Orders, guidance, and policy issued by CEQ,
Office of Management and Budget (OMB), USDOT, or FHWA (e.g. Guidance
Establishing Metrics for the Permitting and Environmental Review of
Infrastructure Projects); and any applicable Federal court decisions,
and, subject to subpart 5.1.4 of this MOU, interagency agreements, and
other similar documents that relate to the environmental review
process, e.g., 2015 Red Book--Synchronizing Environmental Reviews for
Transportation and Other Infrastructure Projects. Official USDOT and
FHWA guidance and policies relating to environmental review are posted
on FHWA's Website, contained in FHWA Environmental Guidebook or
published in the Federal Register, or sent to DOT&PF electronically or
in hard copy.
A. The DOT&PF has reviewed the 2014 MOA between the U.S. Coast
Guard (USCG) and FHWA and understands that by accepting FHWA's NEPA
responsibilities, it also agrees to perform FHWA's obligations set
forth in the MOU between the USDOT and the USCG and the MOA between
FHWA and the USCG.
B. The USDOT Secretary's authorities under 23 U.S.C. 144(h) are not
assigned under this MOU.
5.1.2 The FHWA will use its best efforts to ensure that any new or
revised Federal policy or guidance, which are final and applicable to
FHWA's responsibilities under NEPA and other laws that are assumed by
DOT&PF under this MOU, are communicated to DOT&PF within 10 business
days of issuance. Delivery may be accomplished by email, web posting
(with email or mail to DOT&PF notifying of web posting), mail, or
publication in the Federal Register (with email or mail to DOT&PF
notifying of publication). If communicated to DOT&PF by email or mail,
such material will be sent to DOT&PF's Environmental Program Manager
and the following address: NEPA@alaska.gov. When FHWA is considering
changes to the Program or changes that may or will impact DOT&PF's
assumed responsibilities or resources, FHWA shall seek input from
DOT&PF. In the event a new or revised FHWA policy or guidance is not
made available to DOT&PF as described in this subpart, and if DOT&PF
had no knowledge of such policy or guidance, then a failure by DOT&PF
to comply with such Federal policy or guidance will not be a basis for
termination of this MOU or a negative audit finding under this MOU.
5.1.3 The DOT&PF will coordinate with Federal resource agencies
concerning applicable laws, formal guidance, and policies that such
other Federal agencies are responsible for administering with respect
to DOT&PF's highway projects and the assumption of responsibilities
under this MOU.
Within six (6) months of the Effective Date of this MOU, DOT&PF
will work with FHWA and the resource agencies to modify existing
interagency agreements. Such actions may include:
A. Obtaining written consent to the continuation of an interagency
agreement in its existing form, but with the substitution of DOT&PF for
FHWA; or
B. Amending an interagency agreement as needed so that the
interagency agreement continues but that DOT&PF assumes FHWA's
responsibilities.
If an affected agency does not agree to modify an interagency
agreement then, to the extent permitted by applicable law and
regulation, DOT&PF will carry out the assumed environmental review,
consultation, or other related activity in accordance with applicable
laws and regulations but without the benefit of the provisions of the
interagency agreement.
5.1.4 The DOT&PF may enter into an interagency agreement with a
Federal, state, tribal, or local agency regarding appropriate proceses
and procedures to carry out the project-specific responsibilities
assumed under this MOU. Although FHWA is not required to be a
signatory, such an interagency agreement must conform with all
provisions of this MOU, especially subpart 5.2.1.
5.1.5 Upon termination of this MOU, DOT&PF and FHWA shall contact the
Federal resource agency to determine whether any interagency agreement
should be amended or reinstated as appropriate.

5.2 Rulemaking

5.2.1 As provided under 23 U.S.C. 327(f), nothing in this MOU allows
DOT&PF to assume any rulemaking authority of the USDOT Secretary.
Additionally, DOT&PF may not establish policy and guidance on behalf of
the USDOT Secretary or FHWA for highway projects covered in this MOU.
The DOT&PF's authority to establish State regulations, policy, and
guidance concerning the State environmental review of State highway
projects shall not supersede applicable Federal environmental review
regulations, formal policy, or guidance established by or applicable to
the USDOT Secretary or FHWA.
5.2.2 Nothing in this MOU prevents DOT&PF from commenting on any
Federal Register notice for any matter, including Notices of Proposed
Rulemaking and other public notices.

5.3 Effect of Assumption

5.3.1 For purposes of carrying out the responsibilities assumed under
this MOU, and subject to the limitations contained in 23 U.S.C. 327 and
this MOU, DOT&PF shall be deemed to be acting as FHWA with respect to
the environmental review, consultation, and other related actions
required under those responsibilities.

5.4 Other Federal Agencies

5.4.1 As provided under 23 U.S.C. 327(a)(2)(E), nothing in this MOU
preempts or interferes with any power, jurisdiction, responsibility, or
authority of any Federal agency other than USDOT (including FHWA),
under applicable statutes and regulations with respect to a highway
project.

PART 6. LITIGATION

6.1 Responsibility and Liability

6.1.1 As provided in 23 U.S.C. 327(e), DOT&PF will be solely liable and
solely responsible for carrying out the responsibilities assumed under
this MOU, in lieu of and without further approval of the USDOT
Secretary. The FHWA and USDOT will have no responsibility or liability
for the performance of the responsibilities assumed by DOT&PF,
including any decision or

[[Page 40632]]

approval made by DOT&PF while participating in the Program.

6.2 Litigation

6.2.1 Nothing in this MOU affects the United States Department of
Justice's (USDOJ) authority to litigate claims, including the authority
to approve a settlement on behalf of the United States if either FHWA
or another agency of the United States is named in such litigation or
if the United States intervenes pursuant to 23 U.S.C. 327(d)(3). In the
event FHWA or any other Federal agency is named in litigation related
to matters under this MOU or the United States intervenes in the
litigation, DOT&PF will coordinate with FHWA and any USDOJ or Federal
agency attorneys in the defense of that action.
6.2.2 The DOT&PF shall defend all claims brought in connection with its
discharge of any responsibility assumed under this MOU. In the event of
litigation, DOT&PF will provide qualified and competent legal counsel,
including outside counsel if necessary. The DOT&PF will provide the
defense at its own expense, subject to 23 U.S.C. 327(a)(2)(G)
concerning Federal-aid participation in attorney's fees for DOT&PF's
counsel. The DOT&PF will be responsible for opposing party's attorney's
fees and court costs if a court awards those costs to an opposing
party, or in the event those costs are part of a settlement agreement,
subject to appropriation by the Alaska legislature and subject to
allocation of responsibility between DOT&PF and any co-defendant
Federal agency.
6.2.3 The DOT&PF will notify the FHWA's Alaska Division Office and
DOJ's Assistant Attorney General for the Environment and Natural
Resources Division, within seven (7) calendar days of DOT&PF's receipt
of service of process of any complaint, concerning its discharge of any
responsibility assumed under this MOU. The DOT&PF's notification to the
FHWA and USDOJ shall be made prior to its response to the complaint. In
addition, DOT&PF shall notify the FHWA's Alaska Division Office within
seven (7) calendar days of receipt of any notice of intent to sue
concerning its discharge of any responsibility assumed under this MOU.
6.2.4 The DOT&PF will provide the FHWA's Alaska Division Office and
USDOJ copies of any motions, pleadings, briefs, and other such
documents filed in any case concerning its discharge of any
responsibility assumed under this MOU. The DOT&PF will provide such
copies to the FHWA and USDOJ within seven (7) calendar days of receipt
of service of any document or, in the case of any documents filed by or
on behalf of DOT&PF, within seven (7) calendar days of the date of
filing.
6.2.5 The DOT&PF will notify the FHWA's Alaska Division Office and
USDOJ prior to settling any lawsuit, in whole or in part, and shall
provide the FHWA and USDOJ with a reasonable amount of time of at least
ten (10) calendar days, to be extended, if feasible based on the
context of the lawsuit, up to a maximum of thirty (30) total calendar
days, to review and comment on the proposed settlement. The DOT&PF will
not execute any settlement agreement until: (1) FHWA and USDOJ have
provided comments on the proposed settlement; (2) indicated that they
will not provide comments on the proposed settlement; or (3) the review
period has expired, whichever occurs first.
6.2.6 Within seven (7) calendar days of receipt by DOT&PF, DOT&PF will
provide notice to FHWA's Division Office and USDOJ of any court
decision on the merits, judgment, and notice of appeal arising out of
or relating to the responsibilities DOT&PF has assumed under this MOU.
The DOT&PF shall notify FHWA's Alaska Division Office and USDOJ within
five (5) days of filing a notice of appeal of a court decision. The
DOT&PF shall confer with FHWA and USDOJ regarding the appeal at least
forty-five (45) days before filing its initial brief on the merits of
the appeal.
6.2.7 The DOT&PF's notifications to FHWA and USDOJ in subparts 6.2.3,
6.2.4, 6.2.5, and 6.2.6 shall be made by electronic mail to
FHWA_assignment_lit@dot.gov, and NRSDOT.enrd@usdoj.gov, unless
otherwise specified by FHWA and USDOJ. For copies of motions,
pleadings, briefs, and other documents filed in a case, as identified
in subpart 6.2.4, DOT&PF may opt to either send the materials to the
email addresses identified above, send hardcopies to the mail address
below, or add to the distribution list in the court's electronic filing
system (e.g., PACER) the following two email addresses:
FHWA_assignment_lit@dot.gov and efile_nrs.enrd@usdoj.gov. The FHWA and
USDOJ's comments under subpart 6.2.5 and 6.2.6 shall be made by
electronic mail to NEPA@alaska.gov unless otherwise specified by
DOT&PF. In the event that regular mail is determined necessary, mail
should be sent by overnight mail service to:
For USDOJ: Assistant Attorney General for the Environment and
Natural Resources Division at 950 Pennsylvania Avenue NW., Room 2143,
Washington, DC 20530.
For FHWA: Division Administrator, Federal Highway Administration--
Alaska Division, P.O. Box 21648, 709 West 9th Street, Room 851, Juneau,
AK 99802-1648.
For DOT&PF: Statewide Environmental Program Manager, Alaska
Department of Transportation and Public Facilities, 3132 Channel Drive,
P.O. Box 112500, Juneau, AK, 99811-2500.

6.3 Conflict Resolution

6.3.1 In discharging any of the USDOT Secretary's responsibilities
under this MOU, DOT&PF agrees to comply with any applicable
requirements of USDOT and FHWA statute, regulation, guidance, or policy
regarding conflict resolution. This includes compliance with the USDOT
Secretary's responsibilities for issue resolution under 23 U.S.C.
139(h) with the exception of the USDOT Secretary's responsibilities
under 23 U.S.C. 139(h)(7) regarding financial penalties.
6.3.2 The DOT&PF agrees to follow 40 CFR part 1504 in the event of pre-
decision referrals to CEQ for Federal actions determined to be
environmentally unsatisfactory. The DOT&PF also agrees to coordinate
and work with CEQ on matters brought to CEQ with regards to the
environmental review responsibilities for Federal highway projects
DOT&PF has assumed under this MOU.

PART 7. INVOLVEMENT WITH OTHER AGENCIES

7.1 Coordination

7.1.1 The DOT&PF agrees to seek early and appropriate coordination with
all applicable Federal, State, and local agencies in carrying out any
of the responsibilities for highway projects assumed under this MOU.

7.2 Processes and Procedures

7.2.1 The DOT&PF will ensure that it has appropriate processes and

[[Page 40633]]

procedures in place that provide for proactive and timely consultation,
coordination, and communication with applicable Federal agencies in
order to carry out the responsibilities assumed under this MOU,
including the submission of all EISs together with comments and
responses to the Environmental Protection Agency (EPA) as required by
40 CFR 1506.9 and for EPA's review as required by section 309 of the
Clean Air Act, 42 U.S.C. 7609. These processes and procedures shall be
formally documented. Documentation may be a formally executed
interagency agreement or other format as appropriate.

PART 8. INVOLVEMENT WITH FHWA

8.1 Generally

8.1.1 In discharging any of the USDOT Secretary's and FHWA's
responsibilities under this MOU, DOT&PF and FHWA agree to work
cooperatively to resolve substantive issues regarding the
implementation or interpretation of this MOU.
8.1.2 Except as specifically provided otherwise in this MOU, FHWA will
not provide project-level assistance to DOT&PF in carrying out the
responsibilities it has assumed under this MOU. Project-level
assistance includes advice, consultation, or review of draft documents.
However, project-level assistance does not include: process or Program-
level assistance as described in subpart 8.1.5 of this MOU, including
discussions concerning issues addressed in prior projects,
interpretations of applicable law contained in Title 23 U.S.C. or Title
49 U.S.C., interpretations of any FHWA or USDOT regulation, or
interpretations of FHWA or USDOT policies or guidance.
8.1.3 The FHWA will not intervene, broker, act as intermediary, or
otherwise be involved in any issue involving DOT&PF's consultation or
coordination with other Federal resource agencies with respect to
DOT&PF's discharge of any of the responsibilities assumed under this
MOU for any particular highway project. However, FHWA may attend
meetings between DOT&PF and other Federal agencies. Further, FHWA may
submit comments to DOT&PF and the other Federal agency in the following
extraordinary circumstances:
A. FHWA reasonably believes that DOT&PF is not in compliance with
this MOU;
B. FHWA determines that an issue between DOT&PF and the other
Federal agency concerns an emerging national policy issue under
consideration by the USDOT; or
C. upon request by DOT&PF Environmental Program Manager, DOT&PF
Commissioner, DOT&PF Deputy Commissioner, or DOT&PF Chief Engineer, or
the Federal agency, with agreement by the FHWA.
The FHWA will notify both DOT&PF and the relevant Federal agency
prior to attending any meetings between DOT&PF and such other Federal
agency.
8.1.4 Other Federal agencies may raise concerns regarding compliance
with this MOU by DOT&PF and may communicate these concerns to FHWA. The
FHWA will review the concerns and any information provided to FHWA by
such other Federal agency. If FHWA determines the concern has merit,
FHWA shall inform the DOT&PF Environmental Program Manager. The DOT&PF
will review the concerns and any information provided to FHWA, and work
with the other Federal agency to resolve the concern. If the concern
remains unresolved, FHWA will notify DOT&PF and will work with both
DOT&PF and the other Federal agency to resolve the issue and, if
necessary, take appropriate action to ensure compliance with this MOU.
8.1.5 At DOT&PF's request, FHWA may assist DOT&PF in evaluating its
environmental program and developing or modifying any of its processes
or procedures to carry out the responsibilities it has assumed under
this MOU, including, but not limited to, emerging national policy
issues and those processes and procedures concerning DOT&PF's
consultation, coordination, and communication with other Federal
agencies.
8.1.6 Communications between DOT&PF and FHWA regarding the
administration of the responsibilities assigned and assumed under this
MOU, and other process and Program-level communications described in
subparts 8.1.2 and 8.1.5 of this MOU, are normally considered intra-
agency communications for the purpose of deliberative process
privileges under the Freedom of Information Act and the Alaska Public
Records Act. The DOT&PF and FHWA shall promptly notify each other of
requests for public records regarding the administration of the Program
in Alaska.
8.1.7 For active projects where DOT&PF is assuming responsibilities
from FHWA under this MOU, FHWA shall allow DOT&PF access to its project
files and arrange for copies to be provided upon request by DOT&PF.
8.1.8 The DOT&PF's obligations and responsibilities under 23 CFR 1.5
are not altered in any way by executing this MOU.

8.2 MOU Monitoring and Oversight

8.2.1 FHWA will provide necessary and appropriate monitoring and
oversight of DOT&PF's compliance with this MOU. The FHWA's monitoring
and oversight activities in years one through four of this MOU's term
will primarily consist of an annual audit as provided at 23 U.S.C.
327(g) and Part 11 of this MOU, and evaluating attainment of the
performance measures listed in Part 10 of this MOU. After the fourth
year of DOT&PF's participation in the Program, FHWA will monitor
DOT&PF's compliance with the MOU including the provision by DOT&PF of
financial resources to carry out the MOU. The FHWA's monitoring and
oversight may also include submitting requests for information to
DOT&PF and other relevant Federal agencies, verifying DOT&PF's
financial and personnel resources dedicated to carrying out the
responsibilities assumed, and reviewing documents and other
information.
8.2.2 Pursuant to 23 U.S.C. 327(c)(4), DOT&PF is responsible for
providing FHWA any information FHWA reasonably considers necessary to
ensure that DOT&PF is adequately carrying out the responsibilities
assigned. When requesting information subject to section 327(c)(4),
FHWA will provide the request to DOT&PF in writing, and the request
will identify with reasonable specificity the information required.
FHWA will also indicate in the request a deadline for the information
to be provided. DOT&PF will, in good faith, work to ensure the
information requested is provided by the deadline. DOT&PF's response to
an information request under this paragraph will include, where
appropriate, making relevant

[[Page 40634]]

employees and consultants available at their work location (including
in-person meeting, teleconference, videoconference or other electronic
means as may be available).
8.2.3 The DOT&PF shall make project files and general administrative
files pertaining to the discharge of the responsibilities it has
assumed under this MOU reasonably available for inspection by FHWA at
the files' locations upon reasonable notice, which is not less than
five business days. These files shall include, but are not limited to,
letters and comments received from governmental agencies, the public,
and others with respect to DOT&PF's discharge of the responsibilities
assumed under this MOU. The DOT&PF will maintain privileged
communications in separate files and, at the request of FHWA, will
provide those communications to FHWA's counsel for the purposes of
FHWA's review and monitoring of the Program and to preserve DOT&PF's
privileges in those communications.
8.2.4 In carrying out the responsibilities assumed under this MOU,
DOT&PF agrees to carry out regular quality control and quality
assurance (QA/QC) reviews to ensure that the assumed responsibilities
are being conducted in accordance with applicable law and this MOU. At
a minimum, DOT&PF's QA/QC process will include the review and
monitoring of its processes and performance relating to project
decisions, completion of environmental analysis, project file
documentation, checking for errors and omissions, and legal sufficiency
reviews, and taking appropriate corrective action as needed. Within
three (3) months of the Effective Date of this MOU, DOT&PF shall
finalize a QA/QC process that satisfies the requirements in this
subpart. In developing and implementing the QA/QC process, DOT&PF shall
consult with the FHWA Alaska Division Office. DOT&PF agrees cooperate
with FHWA to consider recommendations FHWA may have made with respect
to its QA/QC process.
8.2.5 The DOT&PF shall perform annual self-assessments of its QA/QC
process and performance to determine if its process is working as
intended. If any process areas are identified as needing improvement,
DOT&PF will take appropriate and timely corrective actions to address
such areas. At least one month prior to the date of a scheduled FHWA
audit DOT&PF will transmit a summary of its most recent self-assessment
to FHWA Alaska Division Office. The summary will include a description
of the scope of the self-assessment conducted and the areas reviewed, a
description of the process followed in conducting the self-assessment,
a list of the areas identified as needing improvement, any corrective
actions that have been or will be implemented and a statement from
DOT&PF's Environmental Program Manager concerning whether the processes
are ensuring that the responsibilities DOT&PF has assumed under this
MOU are being carried out in accordance with this MOU and all
applicable Federal laws and policies, and a summary of DOT&PF's
progress toward attaining the performance measures listed in Part 10 of
this MOU.
8.2.6 Upon the Effective Date of this MOU, DOT&PF will maintain a list
of NEPA approvals and decisions (CE, EA, FONSI, DEIS, FEIS, FEIS/ROD,
ROD) and Section 4(f) approvals it makes under this MOU. The DOT&PF
will provide an updated list to FHWA every six (6) months.

8.3 Records Retention

8.3.1 DOT&PF will retain project files, and files pertaining to the
discharge of its responsibilities under this MOU, in accordance with
the DOT&PF Statewide Design and Engineering Services Division, State of
Alaska Records Retention and Disposition Schedule, which meets or
exceeds requirements established in FHWA Records Disposition Manual
(Field Offices) Chapter 4, FHWA Order No. 1324.1 B, issued July 29,
2013 or in accordance with any subsequent order that supersedes or
replaces Order No. 1324.1 B. In accordance with DOT&PF Records
Retention and Disposition Schedule 25-539.2, records will be retained
for six (6) fiscal years after the completion of the project, reporting
requirement or other applicable activity. Capital project files of
historical significance (NEPA decision documents including CE, EA and
EIS) will be retained permanently.
To the extent that FHWA's Records Disposition Manual is amended to
provide for a longer retention period, DOT&PF will meet such
requirement.
DOT&PF will permanently store records for Significant Transportation
Projects as they are defined in FHWA Order No. 1324.1B.
8.3.2 For the following record types DOT&PF will ensure that the
following retention periods are maintained in the following manner:
A. FHWA-DOT&PF Environment Correspondence Files: Correspondence
between FHWA and DOT&PF relative to the interpretation, administration,
and execution of this MOU and the environmental aspects of the Federal-
aid Highway Program, as established in 8.1.2 and 8.1.5, shall be
maintained by DOT&PF for a period of six (6) years after the resolution
of the particular issue or after the guidance has been superseded.
After six (6) years DOT&PF may follow the State records disposition
process for these records.
B. National Environmental Policy Act (NEPA) and Related Documents:
For a period of 8 years after approval of the final construction
voucher DOT&PF shall maintain Final NEPA Documents (Draft EISs, Final
EISs, Supplemental EISs, RODs, EAs, FONSIs, CE documentation and
determinations), Supporting Materials (documentation supporting the
Sec. 139 environmental review process [i.e., coordination plans that
include project schedules, evidence for opportunities for public/agency
input in purpose and need, alternatives], scoping, public and agency
comments; meeting minutes; NOI, Public Involvement Plans, public
meeting summaries, public hearing certifications and transcripts,
mitigation reports/tracking, technical reports; correspondence; studies
and reports; references; errata sheets; and reevaluation documents);
NEPA Reference Documents (written statements and supporting documents
needed for reference); and official documents and correspondence
related to reviews under other environmental requirements (e.g., ESA,
CWA, Section 4(f), Section 106). After 8 years DOT&PF may follow the
State records disposition process for these records except that DOT&PF
will permanently store the above referenced records for Significant
Transportation Projects as they are

[[Page 40635]]

defined in Order No. 1224.1B.
Drafts and working copies of paper or electronic documents should
be kept until the final version of a document is completed. For long or
complex documents, several earlier drafts and the current draft may be
retained to ensure document integrity until the final draft is
approved. Then, previous revisions may be erased or destroyed and only
the final text and the requisite back-up copies will be kept as
identified above.
C. Environmental Impact Statements--Other Agencies: Files
containing reviews and comments furnished by DOT&PF to other Federal
agencies following reviews of an EIS for which another Federal agency
is the lead agency shall be maintained by DOT&PF for a period of 5
years. After 5 years, DOT&PF may destroy these files when no longer
needed.
D. Noise Barriers: DOT&PF agrees to maintain the necessary
information to comply with 23 CFR 772.13(f) regarding noise abatement
measures reporting. DOT&PF shall maintain this information for a period
of 4 years after the end of the Federal fiscal year in which the
project file is closed.
8.3.3 In the case of a conflict between FHWA Records Disposition
Manual, FHWA Order 1324.1B, DOT&PF Records Management Policy, and
Retention and Disposal Schedule the more stringent retention
requirements shall control.
8.3.4 Nothing contained in this MOU is intended to relieve DOT&PF of
its recordkeeping responsibilities under 2 CFR 200.333-200.337 (Record
Retention and Access) or other applicable laws.

8.4 Federal Register

8.4.1 For any documents that are required to be published in the
Federal Register, such as the Notice of Intent under 23 CFR 771.123(a)
and Notice of Final Agency Action under 23 U.S.C. 139(l)(2), DOT&PF
shall transmit such document to FHWA's Alaska Division Office, with a
request for publication in the Federal Register on behalf of DOT&PF.
The FHWA's Alaska Division Office will submit such document to the
Federal Register within five (5) calendar days of receipt of DOT&PF's
request for publication in the Federal Register. If requested, DOT&PF
shall reimburse FHWA for costs associated with publishing such
documents in the Federal Register (excluding FHWA's overhead).

8.5 Participation in Resource Agency Reports

8.5.1 DOT&PF agrees to provide data and information requested by FHWA
and resource agencies for the preparation of national reports to the
extent that the information relates to determinations, findings, and
proceedings associated with projects processed under this MOU. Such
reports include but are not limited to:
A. Information on the completion of and duration to complete all
NEPA classes of action (EIS, EA, CE);
B. Archeology Reports requested by the National Park Service (NPS);
C. Endangered Species Act Expenditure Reports requested by the
USFWS and NMFS;
D. Project schedules and other project information for nationwide
infrastructure transparency initiatives
E. Project status and information for EAs and EISs for use on the
searchable website maintained under section 41003(b) of the FAST Act
[Fixing America's Surface Transportation Act, 42 U.S.C. 4370m-2(b) and
23 U.S.C. 139(o)] (Federal Permitting Dashboard) to be submitted in
accordance with current and any future reporting standard issued by
U.S. DOT pursuant to such provisions;
F. NEPA Litigation Reports requested by CEQ; and
G. Environmental Conflict Resolution reports requested by the
Office of Management and Budget and CEQ.

8.6 Conformity Determinations

8.6.1 Pursuant to 23 U.S.C. 327(a)(2)(B)(iv)(II), for any project
requiring a project-level conformity determination under the Clean Air
Act and its implementing regulations, FHWA's Alaska Division Office
will document the project level conformity determination within a
reasonable timeframe. The FHWA's Alaska Division Office will restrict
its review to only that data, analyses, applicable comments and
responses, and other relevant documentation that enable FHWA to make
the project-level conformity determination.

8.7 Certification of NEPA Compliance

8.7.1 For projects funded by FHWA, DOT&PF shall ensure that a
certification is included with each NEPA approval specifying that
DOT&PF has fully carried out all responsibilities assumed under this
MOU in accordance with this MOU and all applicable Federal laws,
regulations, Executive Orders, and policies. DOT&PF shall ensure that
this certification is made prior to the execution of any future
Federal-aid approval or action. The DOTPF shall include the
certification in its request for authority to proceed to final design,
right-of-way acquisition, or construction. The DOT&PF agrees to provide
FHWA access to NEPA approvals and certifications.

8.8 Enforcement

8.8.1 Should FHWA determine that DOT&PF is not in compliance with this
MOU, then FHWA shall take appropriate action to ensure DOT&PF's
compliance, including appropriate remedies provided at 23 CFR 1.36 for
violations of or failure to comply with Federal law or regulations at
23 CFR with respect to a project, withdrawing assignment of any
responsibilities that have been assumed as provided in Part 9 of this
MOU, or terminating DOT&PF's participation in the Program as provided
in Part 13 of this MOU.

PART 9. WITHDRAWAL OF ASSIGNED RESPONSIBILITIES

9.1 FHWA-Initiated Withdrawal of Assigned Projects

9.1.1 The FHWA may, at any time, withdraw the assignment of all or part
of the USDOT Secretary's responsibilities that have been assumed by
DOT&PF under this MOU for any highway project or highway projects upon
FHWA's determination that:
A. With respect to such project or projects, DOT&PF is not in
compliance with a material term of this MOU or applicable Federal laws
or policies, and DOT&PF has not taken sufficient corrective action to
the satisfaction of FHWA;
B. The highway project or highway projects involve significant or
unique national policy interests for which DOT&PF's assumption of the
USDOT Secretary's responsibilities would be inappropriate; or
C. DOT&PF cannot satisfactorily resolve an issue or concern raised
in government-to-government consultation process, as provided in
subpart 3.2.3.
9.1.2 Upon the FHWA's determination to withdraw assignment of the USDOT
Secretary's responsibilities

[[Page 40636]]

under subpart 9.1.1, FHWA will informally notify DOT&PF of FHWA's
determination. After informally notifying DOT&PF of its determination,
FHWA will provide DOT&PF written notice of its determination including
the reasons for its determination. Upon receipt of this notice, DOT&PF
may submit any comments that would resolve the compliance concern or
objections to FHWA within 30 calendar days, unless FHWA agrees to an
extended period of time. Upon receipt of DOT&PF's comments or
objections, FHWA will make a final determination within 30 calendar
days, unless extended by FHWA for cause, and notify DOT&PF of its
decision. In making its determination, FHWA will consider DOT&PF's
comments or objections, the effect the withdrawal of assignment will
have on the Program, the amount of disruption to the project concerned,
the effect on other projects, confusion the withdrawal of assignment
may cause to the public, the potential burden to other Federal
agencies, and the overall public interest.
9.1.3 The FHWA shall withdraw assignment of the responsibilities DOT&PF
has assumed for any highway project when the preferred alternative that
is identified in the CEs, EA, or FEIS is a highway project or part of a
program that is specifically excluded in subpart 3.3.2. In such case,
subpart 9.1.2 of this MOU shall not apply.

9.2 DOT&PF-Initiated Withdrawal of Assignment of Projects

9.2.1 The DOT&PF may, at any time, provide FHWA with notice of its
intent to withdraw a highway project assumed under this MOU.
9.2.2 Upon DOT&PF's decision to request FHWA withdraw the assignment of
the USDOT Secretary's responsibilities under subpart 9.2.1, DOT&PF
shall informally notify FHWA of its desire for FHWA to withdraw
assignment of its responsibilities. After informally notifying FHWA of
its desire, DOT&PF will provide FHWA written notice of its desire,
including the reasons for wanting FHWA to withdraw assignment of the
responsibilities. Upon receipt of this notice, FHWA will have 30
calendar days, unless extended by FHWA for cause, to determine whether
it will withdraw assignment of the responsibilities requested. In
making its determination, FHWA will consider the reasons DOT&PF desires
FHWA to withdraw assignment of the responsibilities, the effect the
withdrawal of assignment will have on the Program, amount of disruption
to the project concerned, the effect on other projects, confusion the
withdrawal of assignment may cause to the public, the potential burden
to other Federal agencies, and the overall public interest.

PART 10. PERFORMANCE MEASURES

10.1 General

10.1.1 Both FHWA and DOT&PF have determined it is desirable to mutually
establish a set of performance measures to consider DOT&PF's
administration of the responsibilities assumed under this MOU.
10.1.2 The DOT&PF's attainment of the performance measures indicated in
this part of the MOU will be considered by FHWA during audits, as
required by 23 U.S.C. 327(g).
10.1.3 The DOT&PF shall collect and maintain all necessary and
appropriate data related to the attainment of performance measures. In
collecting this data, DOT&PF shall monitor its progress toward meeting
the performance measures and include its progress in the self-
assessment summary described in subpart 8.2.5 of this MOU.

10.2 Performance Measures

10.2.1 The performance measures applicable to DOT&PF in carrying out
the responsibilities it has assumed under this MOU are as follows:
A. Compliance with NEPA, FHWA NEPA regulations, and other Federal
environmental statutes and regulations:
i. Maintain documented compliance with procedures and processes set
forth in this MOU for the environmental responsibilities assumed under
the Program.
ii. Maintain documented compliance with requirements of all
applicable Federal statutes and regulations for which responsibility is
assumed (e.g., Section 106 of the NHPA, Section 7 of the ESA, etc.).
B. QA/QC for NEPA decisions:
i. Maintain and apply internal quality control and assurance
measures and processes, including a record of:
a. Legal sufficiency determinations made by counsel; this shall
include the legal sufficiency reviews of Notices of Intent and Notices
of Final Agency Action as required by law, policy, or guidance;
b. Compliance with FHWA's and DOT&PF's environmental document
content standards and procedures, including those related to QA/QC;
and,
c. Completeness and adequacy of documentation of project records
for projects done under the Program
C. Relationships with agencies and the general public:
i. Assesses change in communication among DOT&PF, Federal and State
resource agencies, and the public resulting from assumption of
responsibilities under this MOU.
ii. Maintain effective responsiveness to substantive comments
received from the public, agencies, and interest groups on NEPA
documents and environmental concerns.
iii. Maintain effective NEPA conflict resolution processes whenever
appropriate.
D. Increased efficiency and timeliness in completion of the NEPA
process:
i. Compare time of completion of environmental document approvals
before and after assumption of responsibilities under this MOU.
ii. Compare time to completion for key interagency consultation
formerly requiring FHWA participation (e.g., Section 7 biological
opinions, Section 106 resolution of adverse effects) before and after
assumption of responsibilities under this MOU.

PART 11. AUDITS

11.1 General

11.1.1 As required at 23 U.S.C. 327(g), FHWA will conduct audits of
DOT&PF's discharge of the responsibilities it has assumed under this
MOU. During the first four (4) years, audits will be the primary
mechanism used by FHWA to oversee DOT&PF's compliance with this MOU,
ensure compliance with applicable Federal laws and policies, evaluate
DOT&PF's progress toward achieving the performance measures identified
in Part 10, and collect information needed for the USDOT Secretary's
annual report to Congress.
Pursuant to 23 U.S.C. 327(g)(3), each audit carried out under this MOU
shall be carried out by an audit team, consisting of members designated
by FHWA in consultation with DOT&PF. Such consultation shall include a
reasonable opportunity for DOT&PF to review and provide comments on the
proposed members of the audit team.

[[Page 40637]]

11.1.2 Pursuant to 23 U.S.C. 327(c)(4), DOT&PF is responsible for
providing FHWA any information FHWA reasonably considers necessary to
ensure that DOT&PF is adequately carrying out the responsibilities
assigned. The DOT&PF will make documents and records available for
review by FHWA in conducting audits and shall provide FHWA with copies
of any such documents and records as may be requested by FHWA pursuant
to the pursuant to the process identified in subpart 8.2.3. In general,
all documents and records will be made available to FHWA at their
normal place of repository. However, DOT&PF will work with FHWA to
provide documents through email, CD-ROM, mail, or facsimile to the
extent it does not create an undue burden.
11.1.3 The DOT&PF agrees to cooperate with FHWA in conducting audits,
including providing access to all necessary information, making all
employees available to answer questions (including consultants hired
for the purpose of carrying out the USDOT Secretary's
responsibilities), and providing all requested information (including
making employees available) to FHWA in a timely manner. Employees will
be made available either in-person at their normal place of business or
by telephone, at the discretion of FHWA.
11.1.4 The DOT&PF and FHWA Alaska Division Office will each designate
an audit coordinator who will be responsible for coordinating audit
schedules, requests for information, and arranging audit meetings.
11.1.5 Such FHWA audits will include, but not be limited to,
consideration of DOT&PF's technical competency and organizational
capacity, adequacy of the financial resources committed by DOT&PF to
administer the responsibilities assumed, quality control and quality
assurance process, attainment of performance measures, compliance with
this MOU's requirements, and compliance with applicable Federal laws
and policies in administering the responsibilities assumed.

11.2 Scheduling

11.2.1 As provided at 23 U.S.C. 327(g), FHWA will conduct an annual
audit during each of the first (4) four years after the Effective Date.
After the fourth year of DOT&PF's participation in the Program, FHWA
will monitor DOT&PF's compliance with the MOU, including the provision
by DOT&PF of financial resources to carry out the MOU, but will not
conduct additional audits under this Part. In the event the frequency
of the audits is modified by amendments to 23 U.S.C. 327(g), the
frequency established by the statutory amendments will control and
apply to this subpart.
11.2.2 For each annual audit, the designated audit coordinators for
FHWA and DOT&PF will work to establish a general audit schedule within
180 days of the Effective Date or anniversary date of this MOU. The
general audit schedule will include the dates that FHWA will conduct
the audit. To the maximum extent practicable, the general audit
schedule will identify all employees (including consultants) and
documents and other records that DOT&PF will make available, as
requested by FHWA in support of the audit. With respect to documents
and other records, FHWA agrees to be as specific as possible, although
a general description of the types of documents will be acceptable. The
general schedule will include the time period for completing an annual
audit from initiation to completion (including public comment and
responses to those comments), which shall not exceed 180 calendar days,
unless modified by amendments to 23 U.S.C. 327(g).
11.2.3 The DOT&PF's audit coordinator shall make reasonable efforts to
ensure all identified employees (including consultants) are available
to FHWA during the specified dates on the general audit schedule. The
DOT&PF will also ensure necessary documents and records are made
reasonably available to FHWA as needed during the general audit
schedule.
11.2.4 After the general audit schedule is established, the audit
coordinators shall work to establish specific audit schedules at least
two (2) weeks prior to the scheduled audit. The specific audit schedule
shall include the dates, times, and place for which FHWA will talk to
DOT&PF's employees (including consultants) and review of documents and
records.
11.2.5 To the maximum extent practicable, the specific audit schedule
will identify all employees (including consultants) and documents and
other records that DOT&PF will make available to FHWA during the audit.
Should FHWA determine that it needs access to an employee, document or
other record that is not identified in the specific audit schedule,
DOT&PF will make reasonable efforts to produce such employee, document
or other record on the specified dates.

11.3 Other Agency Involvement

11.3.1 The FHWA may invite other Federal or state agencies as deemed
appropriate to assist FHWA in conducting an audit under this MOU by
sitting in on interviews, reviewing documents obtained by FHWA, and
making recommendations to FHWA. The FHWA's audit coordinator will
advise DOT&PF's audit coordinator of FHWA's intent to include other
Federal or state agencies and the proposed role of such agencies in the
audit team. If FHWA invites another Federal or state agency to
participate in the audit team, the agency will be placed on the general
and specific audit schedules. The DOT&PF will have a reasonable
opportunity to review and comment on any proposed additional member of
the audit team.

11.4 Audit Report and Findings

11.4.1 Upon completing each audit, FHWA will transmit to DOT&PF a draft
of the audit report and allow DOT&PF a period of 14 calendar days
within which to submit written comments to FHWA. The FHWA will grant
any reasonable request by DOT&PF to extend its deadline to respond in
writing to a draft audit report not to exceed a total review period of
30 days. The FHWA will review the comments provided by DOT&PF and
revise the draft audit report as may be appropriate. The DOT&PF and
FHWA may also meet and discuss the draft report and DOT&PF's comments.
If DOT&PF anticipates an additional meeting will be beneficial, DOT&PF
will notify FHWA audit coordinator prior to providing its written
comments so that such meeting may be timely scheduled. The FHWA will
then prepare the draft audit report for public comment.
11.4.2 As required by 23 U.S.C. 327(g)(2), FHWA will make the draft
audit report available for public comment. In carrying out

[[Page 40638]]

this requirement, FHWA will, after receipt and incorporation of DOT&PF
comments as provided in subpart 11.4.1, publish the audit report in the
Federal Register and allow a comment period of 30 calendar days. The
FHWA will then address and respond to the public comments by
incorporating the comments and response into the final audit report.
The final audit report will be published in the Federal Register not
later than 60 calendar days after the comment period closes.

PART 12. TRAINING

12.1 The FHWA will provide DOT&PF with training, to the extent that
FHWA and DOT&PF deem necessary, in all appropriate areas with respect
to the environmental responsibilities that DOT&PF has assumed. Such
training may be provided to DOT&PF by either FHWA, another Federal
agency or other parties, as may be appropriate.
12.2 The DOT&PF will continue to implement training necessary to meet
its environmental obligations. Within three (3) months of the Effective
Date of this MOU and annually thereafter, DOT&PF and FHWA, in
consultation with other Federal agencies as deemed appropriate, will
assess DOT&PF's need for training and develop a training plan. The
training plan will be updated by DOT&PF and FHWA, in consultation with
other Federal agencies as appropriate, annually during the term of this
MOU. The DOT&PF will be solely responsible for the final development
and implementation of its training plan.

PART 13. TERM, TERMINATION AND RENEWAL

13.1 Term

13.1.1 This MOU has a term of five (5) years from the Effective Date.

13.2 Termination by FHWA

13.2.1 As provided by 23 U.S.C. 327(j)(1), FHWA may terminate DOT&PF's
participation in the Program, in whole or in part, at any time subject
to the procedural requirements in 23 U.S.C. 327 and subpart 13.2.2 of
this MOU. Termination may be based on DOT&PF's failure to adequately
carry out its responsibilities under this MOU including, but not
limited to:
A. persistent neglect of, or noncompliance with Federal laws,
regulations, and policies;
B. failure to address deficiencies identified during the audit or
monitoring process;
C. failure to secure or maintain adequate personnel and/or
financial resources to carry out the responsibilities assumed;
D. substantial non-compliance with this MOU; or
E. persistent failure to adequately consult, coordinate, or account
for the concerns of appropriate Federal, state, tribal, and local
agencies with oversight, consulting, or coordination responsibilities
under Federal environmental laws and regulations.
13.2.2 If FHWA determines that DOT&PF is not adequately carrying out
the responsibilities assigned to DOT&PF, then:
A. provide DOT&PF written notification of its non-compliance
determination detailing a description of each responsibility in need of
corrective action regarding an inadequacy identified; and
B. provide DOT&PF a period of not less than 120 days to take such
corrective action as the FHWA determines is necessary to comply with
this MOU.
13.2.3 If DOT&PF, after notification and the 120 day period, fails to
take satisfactory corrective action, as determined by FHWA, FHWA shall
provide notice to DOT&PF of its determination of termination. Any
responsibilities identified to be terminated in the notice that have
been assumed by DOT&PF under this MOU shall transfer to FHWA.

13.3 Termination by DOT&PF

13.3.1 The DOT&PF may terminate its participation in the Program, in
whole or in part, at any time by providing FHWA notice of its intent at
least 90 calendar days prior to the date that DOT&PF seeks to terminate
and subject to such terms and conditions as FHWA may provide. In that
event, FHWA and DOT&PF may develop a plan to transition the
responsibilities that DOT&PF has assumed back to FHWA so as to minimize
disruption to projects, minimize confusion to the public, and minimize
burdens to other affected Federal, State, and local agencies.
13.3.2 Any termination of assignment agreed to under a transition plan
shall not be subject to the procedures or limitations provided for in
Part 9 of this MOU and shall be valid as agreed to in the transition
plan.

13.4 Validity of DOT&PF Actions

13.4.1 Any environmental approvals made by DOT&PF pursuant to the
responsibilities DOT&PF has assumed under this MOU shall remain valid
after termination of DOT&PF's participation in the Program or
withdrawal of assignment by FHWA. The DOT&PF shall remain solely liable
and solely responsible for any environmental approvals it makes
pursuant to any of the responsibilities it has assumed while
participating in the Program.

13.5 Renewal

13.5.1 This MOU is renewable in accordance with 23 U.S.C. 327(c)(6) and
implementing regulations, in effect at the time of the renewal. The
DOT&PF and FHWA agree to initiate the renewal process at least 12
months prior to the expiration of this MOU.

PART 14. AMENDMENTS

14.1 Generally

14.1.1 All parts of this MOU may be amended at any time upon mutual
agreement by both FHWA and DOT&PF, pursuant to 23 CFR 773.113(b).

14.2 Additional Projects, Classes of Projects and Environmental Review
Responsibilities

14.2.1 The FHWA may assign, and DOT&PF may assume, responsibility for
additional projects and additional environmental review
responsibilities beyond those identified in Part 3 of this MOU, by
executing an amendment to this MOU.
14.2.2 If DOT&PF decides to request amendment of this MOU to add or
withdraw responsibility for projects or classes of projects, or
environmental review responsibilities beyond those identified in Part 3
of this MOU, such request shall be treated as an amendment to DOT&PF's
original application that was submitted to FHWA pursuant to 23 U.S.C.
327(b) and 23 CFR 773.113(b). In developing the application supplement,
DOT&PF shall identify the projects, classes of projects, and
environmental review responsibilities it wishes to assume or withdraw
and make any appropriate adjustments to the information contained in
DOT&PF's original application, including

[[Page 40639]]

verification of personnel and financial resources.

IN WITNESS THEREOF, the parties hereto have caused this MOU to be duly
executed in duplicate as of the date of the last signature written
below.

STATE OF ALASKA

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Marc A. Luiken, Commissioner, Department of Transportation and
Public Facilities.

Dated:-----------------------------------------------------------------

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Jahna Lindemuth, Attorney General, Department of Law.

Dated:-----------------------------------------------------------------

FEDERAL HIGHWAY ADMINISTRATION

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Brandye L. Hendrickson, Acting Administrator, Federal Highway
Administration.

Dated:-----------------------------------------------------------------

[FR Doc. 2017-18066 Filed 8-24-17; 8:45 am]
BILLING CODE 4910-22-P