Proposed 2022 Renewal of Memorandum of Understanding (MOU) Assigning Certain Federal Environmental Responsibilities to the State of California, Including National Environmental Policy Act (NEPA) Authority for Certain Categorical Exclusions (CEs) Publication: Federal Register Agency: Federal Highway Administration Byline: Vincent Mammano Date: 14 March 2022 Subjects: American Government , Roads & Highways

[Federal Register Volume 87, Number 49 (Monday, March 14, 2022)]
[Notices]
[Pages 14317-14319]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-05332]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

[Docket No. FHWA-2022-0001]


Proposed 2022 Renewal of Memorandum of Understanding (MOU) 
Assigning Certain Federal Environmental Responsibilities to the State 
of California, Including National Environmental Policy Act (NEPA) 
Authority for Certain Categorical Exclusions (CEs)

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

ACTION: Notice of proposed renewal of MOU, request for comments.

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SUMMARY: The FHWA and the State of California, acting by and through 
its Department of Transportation (Caltrans), propose renewing the MOU 
authorizing Caltrans' participation in the Categorical Exclusion 
Assignment program. This program allows FHWA to assign its authority 
and responsibility for determining whether certain designated 
activities within the geographic boundaries of the State, as specified 
in the proposed MOU, are categorically excluded from preparation of an 
environmental assessment or an environmental impact statement under the 
National Environmental Policy Act.

DATES: Comments must be received on or before April 13, 2022.

ADDRESSES: You may submit comments, identified by DOT Document 
Management System (DMS) Docket Number FHWA-2022-0001, by any of the 
methods described below. To ensure that you do not duplicate your 
submissions, please submit them by only one of the means below. 
Electronic comments are preferred because Federal offices experience 
intermittent mail delays from security screening.
    Federal eRulemaking Portal: Go to website: http://www.regulations.gov/. Follow the instructions for submitting comments 
on the DOT electronic docket site.
    Facsimile (Fax): 1-202-493-2251.
    Mail: Docket Management Facility; U.S. Department of 
Transportation, 1200 New Jersey Ave. SE, Washington, DC 20590.
    Hand Delivery: 1200 New Jersey Avenue SE., Washington, DC 20590, 
between 9 a.m. and 5 p.m., Eastern Time, Monday through Friday, except 
Federal holidays.
    For access to the docket to view a complete copy of the proposed 
2022 renewal MOU, or to read background documents or comments received, 
go to http://www.regulations.gov/ at any time, or to 1200 New Jersey 
Avenue SE, Washington, DC 20590, between 9 a.m. and 5 p.m., Eastern 
Time, Monday through Friday, except Federal holidays.
    Instructions: You must include the agency name and docket number at 
the beginning of your comments. All comments received will be posted 
without change to http://www.regulations.gov, including any personal 
information provided.

FOR FURTHER INFORMATION CONTACT: For FHWA: Shawn Oliver; by email at 
Shawn.Oliver@dot.gov or by telephone at 916-498-5048. The California 
Division Office's normal business hours

[[Page 14318]]

are 8 a.m. to 4:30 p.m. (Pacific Time), Monday through Friday, except 
Federal holidays. For the State of California: Chris Benz-Blumberg: By 
email at Chris.Benz-Blumberg@dot.ca.gov or by telephone at 916-956-
8660. The Caltrans' business hours are the same as above although State 
holidays may not completely coincide with Federal holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access

    Internet users may reach the Office of the Federal Register's home 
page at: http://www.archives.gov/ and the Government Publishing 
Office's database at: http://www.govinfo.gov/. An electronic version of 
the proposed 2022 renewal MOU may be downloaded by accessing the DOT 
DMS docket, as described above, at http://www.regulations.gov.

Background

    Section 326 of Title 23 U.S. Code, creates a program that allows 
the Secretary of the U.S. Department of Transportation (Secretary), to 
assign, and a State to assume, responsibility for determining whether 
certain highway projects are included within classes of action that are 
categorically excluded (CE) from requirements for environmental 
assessments or environmental impact statements pursuant to the National 
Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq. (NEPA). In 
addition, this program allows the assignment of other environmental 
review requirements applicable to Federal highway projects. The FHWA is 
authorized to act on behalf of the Secretary with respect to these 
matters.
    The FHWA renewed California's participation in this program for a 
fourth time on April 18, 2019. The original MOU became effective on 
June 7, 2007, for an initial term of 3 years. The first renewal 
followed on June 7, 2010, the second renewal followed on June 7, 2013. 
The third renewal followed on May 31, 2016, and was amended on December 
30, 2016. The fourth renewal has an expiration date of April 18, 2022.
    Prior MOUs in this program had 3-year terms. Changes to 23 U.S.C. 
326(c)(3) under the Bipartisan Infrastructure Law (Infrastructure 
Investment and Jobs Act, Pub. L. 117-58), enacted on November 15, 2021, 
require that MOUs have a term of 5 years for a State that has assumed 
the responsibility for CEs under the program for 10 years or longer. 
Caltrans has participated in this program for 14 years. Therefore, this 
proposed renewal MOU will have a term of 5 years.
    Statewide decision making responsibility would be assigned for all 
activities identified in the MOU within the categories listed in 23 CFR 
771.117(c) and those listed as examples in 23 CFR 771.111(d), and any 
activities added through FHWA rulemaking to those listed in 23 CFR 
771.117(c) or example activities listed in 23 CFR 771.117(d) after the 
date of the execution of this MOU. In addition to the NEPA CE 
determination responsibilities, the MOU would assign to the State the 
responsibility for conducting Federal environmental review, 
consultation, and other related activities for projects that are 
subject to the MOU with respect to the following Federal laws and 
Executive Orders:

 Clean Air Act (CAA), 42 U.S.C. 7401-7671q. Including 
determinations for project-level conformity if required for the 
project, except as specified in Stipulation II.B.2 of the MOU
 Noise Control Act of 1972, 42 U.S.C. 4901-4918
 Compliance with the noise regulations in 23 CFR part 772 
(except approval of the State noise policy in accordance with 23 CFR 
772.7)
 Section 7 of the Endangered Species Act of 1973, 16 U.S.C. 
1531-1544, and 1536
 Marine Mammal Protection Act, 16 U.S.C. 1361-1423h
 Anadromous Fish Conservation Act, 16 U.S.C. 757a-757f
 Fish and Wildlife Coordination Act, 16 U.S.C. 661-667d
 Migratory Bird Treaty Act, 16 U.S.C. 703-712
 Magnuson-Stevens Fishery Conservation and Management Act of 
1976, as amended, 16 U.S.C. 1801-1891d
 Section 106 of the National Historic Preservation Act of 1966, 
as amended, 54 U.S.C. 306108
 Archeological Resources Protection Act of 1979, 16 U.S.C. 
470aa-mm
 Title 54, Chapter 3125--Preservation of Historical and 
Archeological Data, 54 U.S.C. 312501-312508
 Native American Grave Protection and Repatriation Act 
(NAGPRA), 25 U.S.C. 3001-3013; 18 U.S.C. 1170
 Section 4(f) of the Department of Transportation Act of 1966, 
23 U.S.C. 138 and 49 U.S.C. 303; 23 CFR part 774, except as specified 
in Stipulation II.B.2 of the MOU
 American Indian Religious Freedom Act, 42 U.S.C. 1996
 Farmland Protection Policy Act (FPPA), 7 U.S.C. 4201-4209
 Clean Water Act, 33 U.S.C. 1251-1377, Sections 401, 404, and 
319
 Coastal Barrier Resources Act, 16 U.S.C. 3501-3510
 Coastal Zone Management Act, 16 U.S.C. 1451-1466
 Rivers and Harbors Act of 1899, 33 U.S.C. 403
 Wild and Scenic Rivers Act, 16 U.S.C. 1271-1287
 Emergency Wetlands Resources Act, 16 U.S.C. 3921, 3931
 Wetlands Mitigation, 23 U.S.C 103(b)(6)(m), 133(b)(3)
 FHWA wetland and natural habitat mitigation regulations, 23 
CFR part 777
 Flood Disaster Protection Act, 42 U.S.C. 4001-4128
 Safe Drinking Water Act (SDWA), 42 U.S.C. 300f-300j-6
 Land and Water Conservation Fund (LWCF), Public Law 88-578, 78 
Stat. 897 (known as Section 6(f))
 Comprehensive Environmental Response, Compensation, and 
Liability Act (CERCLA), 42 U.S.C. 9601-9675
 Superfund Amendments and Reauthorization Act of 1986 (SARA), 
42 U.S.C. 9671-9675
 Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6901-
6992k
 Landscaping and Scenic Enhancement (Wildflowers), 23 U.S.C. 
319
 E.O. 11990, Protection of Wetlands
 E.O. 11988, Floodplain Management (except approving design 
standards and determinations that a significant encroachment is the 
only practicable alternative under 23 CFR 650.113 and 650.115)
 E.O. 12898, Federal Actions to Address Environmental Justice 
in Minority Populations and Low Income Populations
 E.O. 11593, Protection and Enhancement of Cultural Resources
 E.O. 13007, Indian Sacred Sites
 E.O. 13122, Invasive Species
 Planning and Environment Linkages, 23 U.S.C. 168, except for 
those FHWA responsibilities associated with 23 U.S.C. 134 and 135
 Programmatic Mitigation Plans, 23 U.S.C. 169 except for those 
FHWA responsibilities associated with 23 U.S.C. 134 and 135.

    The MOU allows the State to act in the place of FHWA in carrying 
out the 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 above-listed laws and Executive 
Orders.

[[Page 14319]]

The State may also assist FHWA with formal consultations, with consent 
of a tribe, but FHWA remains responsible for the consultation.
    The FHWA will consider the comments submitted on the proposed fifth 
renewal MOU when making its decision on whether to execute this MOU. 
The FHWA will make the final, executed MOU publicly available.

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

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

Vincent Mammano,
Division Administrator, Federal Highway Administration.
[FR Doc. 2022-05332 Filed 3-11-22; 8:45 am]
BILLING CODE 4910-22-P