[Federal Register Volume 72, Number 28 (Monday, February 12, 2007)]
[Rules and Regulations]
[Pages 6464-6472]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-2375]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
23 CFR Part 773
[FHWA Docket No. FHWA-05-22707]
RIN 2125-AF13
Surface Transportation Project Delivery Pilot Program
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Final rule.
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SUMMARY: Section 6005 of the Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users (SAFETEA-LU) established
a pilot program to allow the Secretary of Transportation to assign, and
the State to assume, the Secretary's responsibilities under the
National Environmental Policy Act (NEPA) for one or more highway
projects. The Secretary may permit not more than five States (including
the States of Alaska, California, Ohio, Oklahoma, and Texas) to
participate in the program. Upon assigning NEPA responsibilities, the
Secretary may further assign to the State all or part of the
Secretary's responsibilities for environmental review, consultation or
other action required under any Federal environmental law pertaining to
the review of a specific project. In order to be selected for the pilot
program a State must submit an application to the Secretary. Section
6005 requires the Secretary to promulgate rules that establish
requirements relating to information required to be contained in an
application by a State to participate in the pilot program. This final
rule establishes these application requirements.
DATES: Effective March 14, 2007.
FOR FURTHER INFORMATION CONTACT: Ms. Ruth Rentch, Office of Project
Development and Environmental Review, HEPE, 202-366-2034 or Mr. Michael
Harkins, Office of the Chief Counsel, 202-366-4928, Federal Highway
Administration, 400 Seventh Street, SW., Washington, DC 20590-0001.
Office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday through
Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION:
Electronic Access and Filing
Internet users may access this document, the notice of proposed
rulemaking (NPRM), and all comments received by the U.S. DOT by using
the universal resource locator (URL) http://dms.dot.gov. It is
available 24 hours each day, 365 days each year. Electronic submission
and retrieval help and guidelines are available under the help section
of the Web site.
An electronic copy of this document may also be downloaded by
accessing the Office of the Federal Register's home page at: http://www.archives.gov or the Government Printing Office's Web page at
http://www.gpoaccess.gov/nara.
Background
Section 6005 of SAFETEA-LU (Pub. L. 109-59, 119 Stat. 1144),
codified at 23 U.S.C. 327, established a pilot program that allows the
Secretary of Transportation (Secretary) to assign up to five States,
including Alaska, California, Oklahoma, Ohio, and Texas, the
responsibilities of the Secretary for implementation of the National
Environmental Policy Act (NEPA)(42 U.S.C. 4321-4347) for one or more
highway projects. Upon assumption of NEPA responsibilities, a State may
also be assigned all or part of the Secretary's responsibilities for
environmental review, consultation or other action required under any
Federal environmental law pertaining to the review or approval of
highway projects. Whenever a State assumes the Secretary's
responsibilities under this program, the State becomes solely
responsible and solely liable for carrying out, in lieu of the
Secretary, the responsibilities it has assumed, including coordination
and resolution of issues with Federal environmental resource and
regulatory agencies and responding to litigation. The Secretary's NEPA
and other environmental responsibilities pertaining to the review and
approval of highway projects, as well as the administration and
implementation of this pilot program, has been delegated to the FHWA
pursuant to 49 CFR 1.48.
In order to participate in this pilot program, a State must submit
an application. Section 327(b)(2) of title 23, United States Code,
requires the Secretary to promulgate regulations that establish
requirements relating to the information that States must submit as
part of their applications to participate in this pilot program. This
final rule establishes these requirements.
[[Page 6465]]
Discussion of Comments Received to the Notice of Proposed Rulemaking
(NPRM)
The FHWA published its NPRM on April 5, 2006, at 71 FR 17040. In
response to the NPRM, the FHWA received 10 comments. The commenters
include two Federal agencies, three State departments of transportation
(State DOT), one public interest group, two associations, and a
consolidated group of comments from each of the State DOTs designated
by the statute as pilot program participants (Designated Pilot States).
One State DOT, the Alaska Department of Transportation and Public
Facilities (ADOT&PF), submitted two comments. The FHWA considered each
of these comments in adopting this final rule.
The majority of the comments addressed several common issues. These
issues are identified and addressed under the appropriate section
below.
Section-by-Section Discussion of Changes
Section 773.103 Definitions
Federal Environmental Law
There were several comments on the definition of ``Federal
environmental law.'' First, the Designated Pilot States and the Texas
Department of Transportation (TxDOT) commented that the regulation or
the preamble should acknowledge that State DOTs already perform much of
the work needed to comply with many environmental laws, and that the
preamble should make clear that the key change under this pilot program
is the transfer of specific decisionmaking and consulting
responsibilities. The FHWA acknowledges that, pursuant to 23 CFR
771.109(c)(1), the State DOTs may currently prepare the environmental
impact statement (EIS) and other environmental documents with the
FHWA's guidance, participation, and independent evaluation of such
documents. The FHWA further acknowledges that this pilot program will
involve the transfer of decisionmaking and consulting responsibilities.
As provided at 23 U.S.C. 327(e), upon assuming responsibility under
this pilot program, the State shall be solely responsible and solely
liable for carrying out such responsibilities until the pilot program
is terminated.
Second, the Designated Pilot States commented that compliance with
Executive Orders should be included in the regulation itself and not
just in Appendix A. The FHWA agrees with this comment and has revised
the definition of ``Federal environmental law'' to include Executive
Orders. It is important to note, however, that Executive Orders are
intended only to improve the internal management and administration of
the Executive Branch of the Federal Government and do not create any
legally enforceable rights. Nothing in this rulemaking is intended to
change the legal force and effect of any Federal statute, regulation,
or Executive Order cited herein. As provided at 23 U.S.C. 327(a)(2)(C),
a State DOT's assumption of any responsibility under this pilot program
is subject to the same procedural and substantive requirements that
apply to the Secretary.
Third, the American Road and Transportation Builders Association
(ARTBA) commented that the State DOTs should be delegated the FHWA's
responsibility for making transportation conformity determinations.
However, 23 U.S.C. 327(a)(2)(B)(ii)(I) expressly prevents the FHWA from
delegating these responsibilities. Thus, the FHWA declines to make this
change.
Lastly, the Environmental Protection Agency (EPA) commented that
the rule should provide clarification on how all environmental
regulations will be followed if all of the FHWA's environmental
responsibilities are not assumed by a State DOT. The FHWA is aware of
the procedural difficulties that may be caused by only a partial
assumption of the FHWA's environmental responsibilities. Should a State
DOT wish to exclude some of the FHWA's environmental responsibilities
under the pilot program, and if satisfactory alternate procedures
cannot be developed in the formal Memorandum of Understanding (MOU),
then the FHWA may either choose to not assign the responsibilities to
the State DOT or withdraw the affected projects from the pilot program.
Under any scenario, the FHWA believes that this issue is more
appropriate for the formal Memorandum of Understanding (MOU) between
the FHWA and the State DOT rather than this rule. The FHWA is committed
to ensuring full compliance with all environmental regulations.
Highway Project
There were several comments on the definition of ``highway
project.'' First, the Designated Pilot States, TxDOT, ADOT&PF, ARTBA,
and EPA all commented on the proposed exclusion of undertakings that
are planned as multi-modal. Designated Pilot States, TxDOT, ADOT&PF,
and ARTBA each commented that this exclusion is overly broad.
Designated Pilot States and TxDOT both commented that the exclusion
would prevent the States from assuming highway projects that include
common multi-modal elements such as express bus service, pedestrian and
bicycle paths, and park-and-ride lots. Designated Pilot States and
TxDOT both commented that excluding projects that are funded under
chapter 53 of title 49, United States Code, or that require the
approval of the Federal Transit Administration (FTA) is sufficient to
prevent the program from applying to projects that do not fit within
the common meaning of the term ``highway project.'' The ADOT&PF wants
to ensure that the definition does not exclude projects on the Alaska
Marine Highway System, which occasionally involve funds from both FHWA
and FTA. The EPA was concerned that the exclusion of multi-modal
projects would limit the range of reasonable alternatives that may be
considered for a project.
The FHWA agrees with each of the comments made by Designated Pilot
States, TxDOT, ARTBA, and EPA and has revised the definition of
``highway project'' to remove the exclusion of multi-modal projects.
The intent behind the proposed exclusion of multi-modal projects from
the definition of highway project was not to be overly restrictive in
the types of projects that States may assume, but rather to ensure that
only actual highway projects are assumed. Also, the FHWA included
express language at the end of the definition to further clarify that a
State may include and consider alternatives that are excluded from this
definition in the range of reasonable alternatives for a highway
project.
However, with respect to the comment from ADOT&PF, the FHWA does
not believe that it is appropriate to include projects that are funded
under chapter 53 of title 49, United States Code. Projects funded under
chapter 53 of title 49, United States Code, are transit projects that
are administered and approved by the FTA. While no changes have been
made concerning the source of funding under chapter 53 of title 49,
United States Code, the FHWA notes that section 1108 of SAFETEA-LU
provides flexibility to the States to transfer any funds made available
for highway projects under chapter 53 of title 49, United States Code,
to title 23, United States Code. Once transferred, these projects would
no longer be excluded. Moreover, improvements to ferry boats and
terminal facilities are eligible for assistance under title 23, United
States Code. Thus, the FHWA believes it is appropriate for improvements
to ferry terminal facilities
[[Page 6466]]
to be considered highway projects under the definition of this rule.
Second, the Designated Pilot States, ARTBA, California Department
of Transportation (Caltrans), EPA, and Save Our Springs Alliance (SOS)
all commented on the proposed exclusion of projects for which a draft
environmental impact statement (DEIS) has already been issued by FHWA.
The EPA and SOS were supportive of this exclusion in order to minimize
changes of authority in the middle of project development. The
Designated Pilot States, ARTBA, and Caltrans were opposed to this
exclusion. Designated Pilot States stated that, given the short term of
the pilot program, which is only six years after the date of enactment
of SAFETEA-LU (August 10, 2005), it may not be possible for the State
DOTs to carry-out many projects requiring an EIS all the way through
the NEPA process.
After considering these comments, the FHWA has decided to remove
this exclusion from the definition of ``highway project.'' The pilot
program is only authorized for six years from the date of enactment of
SAFETEA-LU. One year has already elapsed in developing these
regulations and more time must still be spent in developing the
application, giving public notice, considering the application,
consulting with affected Federal agencies, and executing a memorandum
of understanding. More time is also needed by States for obtaining
legislative authority to consent to exclusive Federal court
jurisdiction with respect to the responsibilities to be assumed. The
FHWA's concern regarding the public frustration over changing the
entity responsible for completing the EIS in the middle of a project
will be minimized through the public notice requirement for the State
DOTs' applications. To ensure that the public is given adequate notice
of all projects for which a DEIS has already been issued, the FHWA has
added a requirement at section 773.106(b)(1) to require each State DOT
to specifically identify each project for which a DEIS has already been
issued in its application. Additionally, the FHWA is also concerned
about how to measure the State DOTs' success under the pilot program
whenever a substantial amount of FHWA involvement has already occurred.
Thus, in order to ensure that this pilot program allows for the
greatest flexibility in the delegation of projects, the FHWA has
eliminated this exclusion. While the FHWA does not believe that there
is any specific threshold that is appropriate for this regulation, the
decision about whether any project may be assumed is discretionary and
will be made by the FHWA on a case-by-case basis.
Third, the Designated Pilot States, Caltrans, and EPA all commented
on the proposed exclusion of projects listed on Executive Order (E.O.)
13274. The Designated Pilot States and Caltrans both urged the FHWA not
to adopt an across-the-board rule excluding all E.O. 13274 projects,
but to use discretion in determining which projects may be assumed on a
case-by-case basis. The EPA asked the FHWA to clarify whether this
exclusion applies only to E.O. 13274's priority list or to both the
priority list and the transition list. After considering these
comments, the FHWA has decided not to eliminate this exclusion. The
projects designated under E.O. 13274 are high priority projects that
have been designated by the Secretary as having national or regional
significance. Moreover, the E.O. 13274 process itself involves high-
level involvement of DOT and other Federal departments and agencies,
which must collaborate and work together to expedite the environmental
review of these projects. As a result, these projects require direct
DOT involvement to not only ensure that special attention is given to
these projects throughout the Federal Government, but also because
these interactions require policy-making authority. With respect to
EPA's comment concerning the scope of this exclusion, it is the FHWA's
intent to exclude projects on both the priority list and the transition
list. However, we do not believe that an amendment to the regulations
is necessary to clarify this point.
Fourth, the Designated Pilot States and ADOT&PF commented on the
proposed exclusion of Federal lands highway projects. The Designated
Pilot States urge the FHWA to reassess this exclusion in light of
ADOT&PF's comments on this issue and state that the exclusion, if any,
should only apply to projects funded with funds under the Federal Lands
Highway Program. The ADOT&PF states that this exclusion should be
modified because it designs and constructs projects across Federal
lands funded under the Federal Lands Highway Program. The FHWA agrees
with these comments and has modified the exclusion to permit the State
DOTs to assume environmental responsibilities for Federal lands
projects that are funded under the Federal Lands Highway Program and
both designed and constructed by the State.
Fifth, the EPA commented on the FHWA's intent to allow States to
assume reevaluations. The EPA is concerned about the effects of changes
of authority in the mid-course of project development. The FHWA does
not believe that the issue of mid-course changes of authority in
project development is significant in the context of a reevaluation.
Reevaluations are separate and independent determinations concerning
whether a specific NEPA determination is still valid. Unlike the issue
concerning a DEIS, the State DOT will conduct a reevaluation from the
beginning of this process. Additionally, due to the limited duration of
this pilot program, the State DOTs' assumption of reevaluations will
provide some data on the State DOTs' ability to assume the FHWA's
environmental responsibilities.
Lastly, the EPA asked the FHWA to clarify whether a State can
assume a Tier 2 project for which a Tier 1 determination has already
been made. It is the FHWA's intent to allow States to assume Tier 2
projects for which a Tier 1 determination has already been made.
However, we do not believe that an amendment to the regulations is
necessary for this clarification.
Section 773.105 Statements of Interest
The American Association of State Highway and Transportation
Officials (AASHTO) commented on the importance of ensuring that all
five openings in the pilot program be filled. AASHTO suggested
including a provision in the regulations that requires each designated
pilot State (Alaska, California, Ohio, Oklahoma, and Texas) to submit a
statement of interest within 60 days of the issuance of the final rule.
The statement of interest would hold the designated pilot State's place
in the program while that State develops its application. If the State
declines to submit a statement of interest, then other States would
have an opportunity to participate in the program. The FHWA agrees with
this comment and has inserted a requirement at section 773.105 to
require that each designated pilot State submit a statement of interest
within 60 days after the effective date of these regulations. The FHWA
has also inserted a requirement that each State actively work to
develop and submit its application and meet all applicable program
criteria, including the enactment of necessary State legal authority
after a statement of interest is submitted. The FHWA further notes
that, while SAFETEA-LU requires the FHWA to give priority to Alaska,
California, Ohio, Oklahoma, and Texas, any State may submit an
application to the FHWA at any time to participate in this pilot
program. Should any of these five designated States decide not to
[[Page 6467]]
participate or fail to meet the eligibility criteria, the FHWA will
consider another State's application.
Section 773.106 Application Requirements for Participation in the
Program
There were several comments on the proposed application
requirements. First, Designated Pilot States and TxDOT commented on the
manner in which classes of projects must be identified in the
application. Designated Pilot States and TxDOT felt that there was an
inconsistency between the proposed regulations and the preamble of the
NPRM, which implied that the State DOTs must individually identify each
project in its application. In drafting the preamble to the NPRM, the
FHWA did not intend to adopt this narrow approach. Rather, the FHWA
intended for a flexible approach to identifying the classes of
projects. State DOTs applying to this pilot program may choose to
either identify individual projects or identify a class of projects by
using a qualitative description of the projects. With the exception of
specifically identifying each project for which a DEIS has already been
issued, as discussed above, there are no limits intended to be placed
on how the States identify the projects other than a requirement to
identify the projects in sufficient terms so as to enable the FHWA,
other agencies, and the public to reasonably know what projects the
State DOT is intending to assume.
Second, TxDOT, ADOT&PF, Designated Pilot States, and SOS all
commented on the requirement for the State DOT to include a
philosophical/policy statement of the State DOT's goals and guiding
principles in making environmental decisions. TxDOT commented that it
is unclear what would constitute an appropriate philosophical/policy
statement and how the statement would be evaluated by the FHWA in
considering the application. ADOT&PF commented that the purpose of the
philosophical/policy statement is unclear and it should be sufficient
for the State DOTs to simply follow the policies and procedural
requirements applicable to the FHWA. Designated Pilot States commented
that the statement itself could be viewed as a regulatory requirement
and that the State DOTs should simply be required to comply with the
procedural and substantive requirements applicable to the FHWA. SOS
commented that the philosophical/policy statement is meaningless unless
it is made binding and enforceable.
Since there appears to be substantial confusion over the purpose
and utility of the philosophical/policy statement, the FHWA has
eliminated this requirement. The purpose of the philosophical/policy
statement was not to create a binding, enforceable standard against
which the State DOTs' environmental decisions would be judged. Rather,
the FHWA was looking for a statement of the State DOTs' commitment to
good environmental stewardship, legal compliance, public involvement,
and cooperation and consultation with Federal agencies, State and local
officials, and Indian tribes. Even though this requirement has been
eliminated, the FHWA notes that 23 U.S.C. 327(a)(2)(C) provides that
the States participating in the pilot program are subject to the same
procedural and substantive requirements as the FHWA under this pilot
program, which includes the policies contained in 42 U.S.C. 4331 and 23
CFR 771.105.
Third, ADOT&PF commented that the purpose behind the requirement to
identify existing environmental and managerial expertise is unclear and
should be revised to only require the State DOTs to identify the staff,
management, and procedures that will be used to administer the
responsibilities the State DOT assumes. The FHWA agrees with this
comment and has eliminated this requirement. Even without this
requirement, the regulations require sufficient information be
submitted concerning the State DOT's personnel to be used in
administering the FHWA's environmental responsibilities. However, in
order to ensure that the State DOT identifies the relevant management,
the FHWA amended section 773.106(b)(4)(i) to require the State DOT to
describe the management positions in addition to the staff positions.
Fourth, ADOT&PF commented on the requirement for the State DOTs to
describe how they will identify and address the projects that would
normally require FHWA headquarters prior concurrence under 23 CFR
771.125(c). Specifically, ADOT&PF commented that the final rule should
waive the applicability of 23 CFR 771.125(c) to the State DOTs
participating in this pilot program. The FHWA disagrees with this
comment. While this requirement is an internal FHWA processing
requirement, the FHWA feels that it is important for the State DOTs to
develop processes that would centralize their decisionmaking processes
for the types of projects listed at 23 CFR 771.125(c).
Fifth, Designated Pilot States, TxDOT, and EPA all commented on the
budget requirements that the State DOTs must submit as part of their
applications. Designated Pilot States commented that it is virtually
impossible to develop a meaningful litigation budget because these
costs are highly unpredictable and that the State DOTs should simply be
required to demonstrate that funding would be reasonably available.
TxDOT commented that it was concerned about providing a budget for
things that may or may not happen, such as litigation costs, and that
the State DOT should be required only to demonstrate that funding is
reasonably available. TxDOT further commented that it considered it to
be sufficient to simply state in its application that TxDOT has a $2.6
billion construction letting budget and a total agency disbursements of
$7.5 billion. EPA commented that it would be very difficult for a State
DOT to show that it has all the financing for a project in place before
the project is undertaken. EPA stated that the State DOTs should be
given the flexibility to provide satisfactory evidence that financing
will be made available.
The FHWA agrees with these comments and has revised section
773.106(b)(5) to require the State DOTs to submit a summary of
financial resources, as opposed to a budget, showing the anticipated
financial resources that will be available to carry out the
responsibilities and projects assumed under this pilot program. The
FHWA recognizes that some costs may be difficult to ascertain and that
the State DOTs' funding is contingent on its appropriations processes.
Thus, a summary of financial resources that identifies anticipated
financial resources and the expected allocation of those resources, as
opposed to a budget, will be sufficient. However, while the FHWA does
not intend to require a budget of future financial resource, the FHWA
notes that the State DOTs must be able to show that they expect to be
able to meet the extra needs identified in sections 773.106(b)(3) and
(4). The FHWA does not believe that the broad, general assertion by
TxDOT stating that the State DOT has a $2.6 billion construction
letting budget and a total agency disbursements of $7.5 billion will be
sufficient verification of financial resources. Instead, the State DOT
must reasonably show how much financial resources are expected to be
allocated to carrying out the environmental responsibilities it has
assumed.
Sixth, SOS commented on the certification required to be made by
the State Attorney General or other State official legally empowered by
State law. SOS commented that the certification should be only from the
Attorney
[[Page 6468]]
General and not some other State official because it is unclear who
might actually be legally empowered to make these certifications. The
FHWA shares this concern. Only a State official that has authority to
consent to Federal court jurisdiction and has the ability to make legal
conclusions should make this certification. However, since each State
has its own unique laws and departmental structures, the FHWA believes
that it is appropriate to leave some flexibility in the regulation as
to which official would actually make this certification. In most
cases, the State's Attorney General would most likely be the
appropriate State official. In other cases, the most appropriate State
official could be the chief legal official of the State DOT. Whenever
an official other than the State's Attorney General makes these
required certifications, the State DOT must show the FHWA that the
official is legally empowered under State law to make the
certification.
Seventh, Designated Pilot States and TxDOT commented on the public
review and comment requirements. Designated Pilot States and TxDOT were
concerned that section 773.106(b)(8) could be construed to require a
State DOT to publish the entire application in every newspaper in the
State. Designated Pilot States and TxDOT state that the size of the
application will make this requirement impracticable and wasteful. In
developing the NPRM, the FHWA did not intend to prescribe the manner in
which the State DOTs publish their applications for public comment.
Rather, the FHWA intended for the publication requirement to be
determined in accordance with State law, as provided at 23 U.S.C.
327(b)(3). Moreover, the FHWA believes that the intent of the
publication requirement of 23 U.S.C. 327(b)(3) is simply to notify the
public that the complete application is reasonably available for public
review and inspection. Additionally, the access to the complete
application provided to the public must enable them to timely review
and comment on the application. Thus, the requirements of 23 U.S.C.
327(b)(3) are met if it is sufficient under State law to provide notice
and solicit public comment on a document by publishing a notice of the
document's availability. The FHWA has added clarifying language in
section 773.106(b)(8) to this effect.
Lastly, ACHP and SOS both commented on the public review and
comment requirements. ACHP commented that the State DOTs should be
required to provide evidence that they have notified and provided an
opportunity to comment to Indian tribes and State Historic Preservation
Officers (SHPO). The FHWA agrees that the State DOTs should ensure that
Indian tribes, SHPOs, and other stakeholders are provided notice and an
opportunity to comment on their applications. Moreover, the State DOTs
should be mindful that their applications will not only be reviewed by
the FHWA, but also other affected Federal agencies, including the ACHP,
before their applications are approved. Evidence of adequate public
notice and a meaningful opportunity to submit comments will be
considered in approving any application. However, the FHWA does not
believe that an amendment to the regulations is necessary to ensure
that any specific group or stakeholder receives notice and is provided
an opportunity to comment.
Also, SOS commented that they have little confidence in the
requirement to seek public comment solely in accordance with the public
notice law of the State, and that the regulations should be amended to
require public outreach and education. However, 23 U.S.C. 327(b)(3)
provides that the public notice requirement be determined under the
appropriate public notice law of the State. Thus, the method of public
notice and solicitation of comments is to be determined by the State
DOTs following State law.
Section 773.108 Application Amendments
The ACHP, similar to its comments on the public notice and comment
process, commented that the State DOT should be required to notify
affected Indian tribes and SHPOs of its intent to amend its
application. As stated above in response to the ACHP's comments on the
public notice and comment process, the FHWA agrees that the State DOTs
should ensure that Indian tribes, SHPOs, and other stakeholders are
provided notice and an opportunity to comment on amendments to their
applications involving requests for additional projects or
responsibilities. However, the FHWA does not believe that an amendment
to the regulations is necessary to ensure that any specific group or
stakeholder receives notice and is provided an opportunity to comment.
Also, the FHWA amended section 773.108 to clarify that the State
DOT does not need to provide notice and solicit public comments for
amendment not involving requests to assume additional highway projects,
classes of highway projects, or more environmental responsibilities.
Appendix A
There were several comments on Appendix A. First, ADOT&PF, ACHP,
Designated Pilot States, and TxDOT commented on the government-to-
government tribal consultation responsibilities. ADOT&PF commented that
the FHWA should reevaluate its proposal in the NPRM to exclude
government-to-government consultations with the Indian tribes. The ACHP
commented that it agreed that government-to-government tribal
consultation responsibilities should only be administered by the State
DOT if the Tribe consents through a formally signed consultation
agreement. The Designated Pilot States commented that they were
concerned that each State DOT would be required to negotiate agreements
with dozens or hundreds of separate Indian tribes simply to permit a
State DOT to continue its current practice of handling consultation
with tribes except in cases where a tribe requests direct FHWA
involvement. TxDOT commented that it is appropriate for FHWA to be
involved when a tribe requests FHWA involvement.
While the statute does not specifically prohibit the FHWA from
assigning its government-to-government consultation responsibilities,
the FHWA does not believe that the agency can, or should try to,
require a sovereign Indian tribe to consult with the State DOT without
a clear Congressional mandate to do so. Additionally, the FHWA is aware
that requiring the State DOT to negotiate individual agreements with
every Indian tribe could be time consuming and very burdensome
administratively. Since the FHWA is not assigning any government-to-
government consultation activities, there should be no change in the
existing relationships between the State DOTs and the Indian tribes.
Thus, the FHWA is deleting this requirement from Appendix A. However,
the FHWA notes that some State DOTs currently have executed agreements
with the Indian tribes within their borders to coordinate and resolve
issues relating to highway projects as part of the FHWA's tribal
consultation process. These agreements have generally worked well and
the State DOTs are encouraged to follow this practice under this pilot
program.
Second, Designated Pilot States and TxDOT commented that the
regulation should clarify that, with regard to the laws listed in
Appendix A, the FHWA would be assigning only those responsibilities
that are carried out as part of the NEPA analysis. TxDOT specifically
commented that E.O. 13287 and E.O. 11514 should be deleted from
Appendix A because they do not require any consideration in the NEPA
process. The FHWA has decided to remove
[[Page 6469]]
E.O.'s 11514, 11593, 13007, 13175, and 13287, and 23 U.S.C. 319 to
indicate that the FHWA would retain responsibility for implementation
of these laws either because they apply only to properties owned and
managed by the Federal Government, involve policy decisions, or do not
otherwise appear to require the FHWA to undertake any environmental
review, consultation, or other action pertaining to the review or
approval of highway projects. Also, the FHWA has modified the reference
to the Rivers and Harbors Act of 1899 in Appendix A to include only
section 10 because the other sections of the Act do not appear to be
inherently environmental.
The FHWA notes that the mere inclusion of a law on the list in
Appendix A does not mean that the law will be automatically assigned.
The laws that are assigned will only be those laws approved by the FHWA
and specifically reflected in the MOU between the FHWA and the State
DOT. Moreover, the list in Appendix A is not meant to be an exhaustive
list, but rather a list of laws the FHWA has predetermined to be
inherently environmental. The FHWA further notes that the State DOTs
participating in the pilot program must comply with the substantive
requirements of all applicable laws regardless of these laws' inclusion
or exclusion in an application or MOU.
Other
The EPA commented that the rulemaking should clarify that the
review and coordination responsibilities assumed by the State DOTs will
not affect or diminish their obligations to other Federal agencies. The
EPA also commented that the States should be required to acknowledge
their commitment to cooperate with other Federal agencies. While we do
not agree that it is necessary to add a regulation to this effect, we
agree with the EPA's comment that the State DOTs must cooperate with
other Federal agencies in administering the FHWA's responsibilities
under this program. These obligations will be made part of the formal
MOUs between the FHWA and the State DOTs. In developing their
applications, the State DOTs should be mindful that the FHWA is
required to consult with other Federal agencies before approving their
applications. Demonstrating their commitment to cooperate with other
Federal agencies in their applications may help expedite the approval
of their applications.
Finally, Designated Pilot States and TxDOT commented that the FHWA
should use an acronym other than ``STD'' whenever referring to a State
transportation department. The FHWA used the acronym ``STD'' since 23
U.S.C. 101(a)(34) uses the words ``State transportation department'' in
referring to the State department charged with the responsibility for
highway construction. However, the FHWA agrees that the term ``State
DOT'' in an acceptable replacement for the previously used acronym and
accordingly, the FHWA has accepted this comment.
Rulemaking Analyses and Notices
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
The FHWA has determined that this action would be a significant
rulemaking action within the meaning of Executive Order 12866 and would
be significant within the meaning of the U.S. Department of
Transportation's regulatory policies and procedures. This rulemaking
proposes application requirements for the Surface Transportation
Project Delivery Program as mandated in section 6005 of the Safe,
Accountable, Flexible, Efficient Transportation Act: A Legacy for Users
(SAFETEA-LU) (Pub. L. 109-59; 119 Stat. 1144; 23 U.S.C. 327).
This action is considered significant because of the substantial
public interest in environmental concerns associated with highway
projects. The program to which this proposed application corresponds
allows States to assume the Secretary of Transportation's
responsibilities under the National Environmental Policy Act of 1969,
and for environmental reviews, consultations, and compliance with other
Federal environmental laws. This action involves important DOT policy
in that it allows participating States to assume limited DOT
responsibilities.
These changes are not anticipated to adversely affect, in a
material way, any sector of the economy. This rulemaking sets forth
application requirements for the Surface Transportation Project
Delivery Pilot Program, which will result in only minimal costs to
program applicants. In addition, these changes do not create a serious
inconsistency with any other agency's action or materially alter the
budgetary impact of any entitlements, grants, user fees, or loan
programs. Consequently, a full regulatory evaluation is not required.
Regulatory Flexibility Act
In compliance with the Regulatory Flexibility Act (Pub. L. 96-354,
5 U.S.C. 601-612) we have evaluated the effects of this proposed action
on small entities and have determined that this action would not have a
significant economic impact on a substantial number of small entities.
This rule addresses application requirements for States wishing to
participate in the Surface Transportation Project Delivery Program. As
such, it affects only States and States are not included in the
definition of small entity set forth in 5 U.S.C. 601. Therefore, the
Regulatory Flexibility Act does not apply, and the FHWA certifies that
this action would not have a significant economic impact on a
substantial number of small entities.
Unfunded Mandates Reform Act of 1995
This rule does not impose unfunded mandates as defined by the
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48).
This rule will not result in the expenditure by State, local, and
tribal governments, in the aggregate, or by the private sector, of
$128.1 million or more in any one year (2 U.S.C. 1532). Further, in
compliance with the Unfunded Mandates Reform Act of 1995, the FHWA will
evaluate any regulatory action that might be proposed in subsequent
stages of the proceeding to assess the effects on State, local, and
tribal governments and the private sector. Additionally, the definition
of ``Federal Mandate'' in the Unfunded Mandates Reform Act excludes
financial assistance of the type in which State, local, or tribal
governments have authority to adjust their participation in the program
in accordance with changes made in the program by the Federal
Government. The Federal-aid highway program permits this type of
flexibility.
Executive Order 13132 (Federalism)
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 13132, and the FHWA has
determined that this action would not have sufficient federalism
implications to warrant the preparation of a federalism assessment. The
FHWA has also determined that this action would not preempt any State
law or State regulation or affect the States' ability to discharge
traditional State governmental functions.
Executive Order 12372 (Intergovernmental Review)
Catalog of Federal Domestic Assistance Program Number 20.205,
Highway Planning and Construction. The regulations implementing
Executive Order 12372 regarding intergovernmental consultation on
[[Page 6470]]
Federal programs and activities apply to this program.
Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501),
Federal agencies must obtain approval from the Office of Management and
Budget (OMB) for each collection of information they conduct, sponsor,
or require through regulations. The FHWA has determined that this
action does not contain collection of information requirements for the
purposes of the PRA. The FHWA does not anticipate receiving
applications from ten or more States because participation in the
Surface Transportation Project Delivery Pilot Program has been limited
to five, expressly named States in 23 U.S.C. 327.
National Environmental Policy Act
The agency has analyzed this action for the purpose of the National
Environmental Policy Act of 1969 (42 U.S.C. 4321-4347) and has
determined that the establishment of the application requirements for
participation in the Surface Transportation Project Delivery Pilot
Program, as required by Congress in 23 U.S.C. 327(b)(2) and the
subsequent delegation of responsibilities, would not have any effect on
the quality of the environment. Section 327 expressly provides that a
State's assumption of the Secretary's responsibilities under this
program shall be ``subject to the same procedural and substantive
requirements as would apply if that responsibility were carried out by
the Secretary.'' 23 U.S.C. 327(a)(2)(C). In addition, this State
assumption of responsibility does not preempt or interfere ``with any
power, jurisdiction, responsibility, or authority of an agency, other
than the Department of Transportation, under applicable law (including
regulations) with respect to a project.'' 23 U.S.C. 327(a)(2)(E).
Finally, the Secretary is authorized to terminate the participation of
any State in this program if the Secretary determines ``that the State
is not adequately carrying out the responsibilities assigned to the
State.'' 23 U.S.C. 327(i)(2)(A).
Executive Order 12630 (Taking of Private Property)
The FHWA has analyzed this rule under Executive Order 12630,
Governmental Actions and Interface with Constitutionally Protected
Property Rights. The FHWA does not believe that this action would
affect a taking of private property or otherwise have taking
implications under Executive Order 12630.
Executive Order 12988 (Civil Justice Reform)
This action meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.
Executive Order 13045 (Protection of Children)
We have analyzed this rule under Executive Order 13045, Protection
of Children from Environmental Health Risks and Safety Risks. The FHWA
certifies that this action would not cause any environmental risk to
health or safety that might disproportionately affect children.
Executive Order 13175 (Tribal Consultation)
The FHWA has analyzed this action under Executive Order 13175,
dated November 6, 2000, and believes that this action would not have
substantial direct effects on one or more Indian tribes; would not
impose substantial direct compliance costs on Indian tribal
governments; and would not preempt tribal laws. The proposed rulemaking
addresses application requirements for the Surface Transportation
Project Delivery Program and would not impose any direct compliance
requirements on Indian tribal governments. Therefore, a tribal summary
impact statement is not required.
Executive Order 13211 (Energy Effects)
We have analyzed this action under Executive Order 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use dated May 18, 2001. We have determined that it is
not a significant energy action under that order since it is not likely
to have a significant adverse effect on the supply, distribution, or
use of energy. Therefore, a Statement of Energy Effects is not
required.
Regulation Identification Number
A regulation identification number (RIN) is assigned to each
regulatory action listed in the Unified Agenda of Federal Regulations.
The Regulatory Information Service Center publishes the Unified Agenda
in April and October of each year. The RIN contained in the heading of
this document can be used to cross reference this action with the
Unified Agenda.
List of Subjects in 23 CFR Part 773
Environmental protection, Highway project, Highways and roads.
Issued on: February 6, 2007.
J. Richard Capka,
Federal Highway Administrator.
0
In consideration of the foregoing, the FHWA adds a new part 773 to
title 23, Code of Federal Regulations to read as follows:
PART 773--SURFACE TRANSPORTATION PROJECT DELIVERY PILOT PROGRAM
Sec.
773.101 Purpose.
773.102 Applicability.
773.103 Definitions.
773.104 Eligibility.
773.105 Statements of Interest.
773.106 Application requirements for participation in the program.
773.107 Application approval.
773.108 Application amendments.
Appendix A to Part 773: FHWA Environmental Responsibilities that may
be Assigned Under Section 6005.
Authority: 23 U.S.C. 315 and 327; 49 CFR 1.48.
Sec. 773.101 Purpose.
The purpose of this part is to establish the requirements, as
directed by 23 U.S.C. 327(b)(2), relating to the information which must
be contained in an application by a State to participate in the program
allowing the Secretary to assign, and a State Department of
Transportation (State DOT) to assume, responsibilities for compliance
with the National Environmental Policy Act (NEPA) (42 U.S.C. 4321-4347)
and other Federal environmental laws pertaining to the review or
approval of a highway project(s).
Sec. 773.102 Applicability.
This part applies to any State DOT eligible under the provisions of
23 U.S.C. 327 that submits an application for participation in the
program.
Sec. 773.103 Definitions.
Unless otherwise specified in this part, the definitions in 23
U.S.C. 101(a) are applicable to this part. As used in this part:
Classes of highway projects means either a defined group of highway
projects or all highway projects to which Federal environmental laws
apply.
Federal environmental law means any Federal law or Executive Order
(EO) under which the Secretary of the United States Department of
Transportation has responsibilities for environmental review,
consultation, or other action with respect to the review or approval of
highway projects. A list of the Federal environmental laws for which a
State
[[Page 6471]]
DOT may assume the responsibilities of the Secretary under this pilot
program include, but are not limited to, the list of laws contained in
Appendix A to this Part. But, under 23 U.S.C. 327(a)(2)(B), the
Secretary's responsibility for conformity determinations required under
section 176 of the Clean Air Act (42 U.S.C. 7506) and the
responsibility imposed on the Secretary under 23 U.S.C. 134 and 135 are
not included in the program. Also, Federal environmental law includes
only laws that are inherently environmental and does not include
responsibilities such as Interstate access approvals (23 U.S.C. 111).
Highway project means any undertaking to construct (including
initial construction, reconstruction, replacement, rehabilitation,
restoration, or other improvements) a highway, bridge, or tunnel, or
any portion thereof, including environmental mitigation activities,
which is eligible for assistance under title 23 of the United States
Code. A highway project may include an undertaking that involves a
series of contracts or phases, such as a corridor, and also may include
anything that may be constructed in connection with a highway, bridge,
or tunnel. However, the term highway project does not include any of
the priority projects designated under Executive Order 13274; does not
include any Federal Lands Highway project unless such project is to be
designed and constructed by the State DOT; and does not include
projects that are funded under chapter 53 of title 49, United States
Code. Nothing in this part is intended to limit the consideration of
any alternative in conducting an environmental analysis under any
Federal environmental law, even if the particular alternative would
provide for a project that is excluded under this section and may
consider and include that alternative within the range of alternatives
for a highway project.
Program means the ``Surface Transportation Project Delivery
Program'' established under 23 U.S.C. 327, which allows up to five
State DOTs to assume all or part of the responsibilities for
environmental review, consultation, or other action required under any
Federal environmental law pertaining to the review or approval of one
or more highway projects.
Sec. 773.104 Eligibility.
(a) Only a State DOT of a State is eligible to participate in the
program.
(b) The program is limited to a maximum five State DOTs, including
the State DOTs of Alaska, California, Ohio, Oklahoma and Texas as the
five participant States. Should any of these five State DOTs choose not
to apply, have its participation terminated, or withdraw from the pilot
program, another State DOT may be selected.
Sec. 773.105 Statements of Interest.
(a) The State DOTs of Alaska, California, Ohio, Oklahoma and Texas
are given priority for participation in the program.
(b) Within sixty days of March 14, 2007, the State DOTs of Alaska,
California, Ohio, Oklahoma and Texas shall submit a statement of
interest to participate in the program. The statement of interest shall
declare that the State DOT intends to submit an application to
participate in the pilot program.
(c) Should any of the State DOTs of Alaska, California, Ohio,
Oklahoma and Texas fail to submit a statement of interest by May 14,
2007 or decline participation in the pilot program, such State DOT
shall no longer be given priority consideration for selection in the
program and its application will be selected in competition with other
State DOTs.
(d) Should any of the State DOTs of Alaska, California, Ohio,
Oklahoma and Texas submit a statement of interest declaring their
intent to participate in the program, the State shall actively work to
develop and submit its application and meet all applicable program
criteria (including the enactment of necessary State legal authority).
Sec. 773.106 Application requirements for participation in the
program.
(a) Each State DOT wishing to participate in the program must
submit an application to the FHWA.
(b) Each application submitted to the FHWA must contain the
following information:
(1) The highway project(s) or classes of highway projects for which
the State is requesting to assume FHWA's responsibilities under NEPA.
The State DOT must specifically identify, in its application, each
project for which a draft environmental impact statement has been
issued prior to the submission of its application to the FHWA;
(2) The specific responsibilities for the environmental review,
consultation, or other action required under other Federal
environmental laws, if any, pertaining to the review or approval of a
highway project, or classes of highway projects, that the State DOT
wishes to assume under this program. The State DOT must also indicate
whether it proposes to phase-in the assumption of these
responsibilities;
(3) For each responsibility requested in paragraphs (b)(1) and
(b)(2) of this section, the State DOT shall submit a description in the
application detailing how it intends to carry out these
responsibilities. The description shall include:
(i) A summary of State procedures currently in place to guide the
development of documents, analyses and consultations required to
fulfill the environmental responsibilities requested. The actual
procedures should be submitted with the application, or if available
electronically, the Web link must be provided;
(ii) Any changes that have been or will be made in the management
of the environmental program to provide the additional staff and
training necessary for quality control and assurance, appropriate
levels of analysis, adequate expertise in areas where responsibilities
have been requested, and expertise in management of the NEPA process;
(iii) A discussion of how the State DOT will verify legal
sufficiency for the environmental document it produces; and
(iv) A discussion of how the State DOT will identify and address
those projects that would normally require FHWA headquarters prior
concurrence of the FEIS under 23 CFR 771.125(c).
(4) A verification of the personnel necessary to carry out the
authority that may be granted under the program. The verification shall
contain the following information:
(i) A description of the staff positions, including management,
that will be dedicated to providing the additional functions needed to
accept the delegated responsibilities;
(ii) A description of any changes to the State DOT's organizational
structure that are deemed necessary to provide for efficient
administration of the responsibilities assumed; and
(iii) A discussion of personnel needs that may be met by the State
DOTs use of outside consultants, including legal counsel provided by
the State Attorney General or private counsel;
(5) A summary of financial resources showing the anticipated
financial resources available to meet the activities and staffing needs
identified in (b)(3) and (b)(4) of this part, and a commitment to make
adequate financial resources available to meet these needs;
(6) Certification and explanation by State's Attorney General, or
other State official legally empowered by State law, that the State DOT
can and will assume the responsibilities of the Secretary for the
Federal environmental laws and
[[Page 6472]]
projects requested and that the State DOT will consent to exclusive
Federal court jurisdiction with respect to the responsibilities being
assumed. Such consent must be broad enough to include future changes in
relevant Federal policies and procedures to which FHWA would be subject
or such consent would be amended to include such future changes;
(7) Certification by the State's Attorney General, or other State
official legally empowered by State law, that the State has laws that
are comparable to the Federal Freedom of Information Act (5 U.S.C.
552), including laws that allow for any decision regarding the public
availability of a document under those laws to be reviewed by a court
of competent jurisdiction; and
(8) Evidence that the required notice and solicitation of public
comment by the State DOT relating to participation in the program has
taken place. Requirements for notice and solicitation of public
comments are as follows:
(i) not later than 30 days prior to submitting its application, a
State must give notice that the State intends to participate in the
program and solicit public comment by publishing the complete
application of the State in accordance with the appropriate public
notice law of the State. If allowed under State law, publishing a
notice of availability of the application rather than the application
itself may satisfy the requirements of this subparagraph so long as the
complete application is made reasonably available to the public for
inspection and copying, and
(ii) copies of all comments received shall be submitted with the
application. The State should summarize the comments received, and note
changes, if any, that were made in the application in response to
public comments.
(c) The application shall be signed by the Governor or the head of
the State agency having primary jurisdiction over highway matters. The
application must also identify a point of contact for questions
regarding the application. Applications may be submitted in electronic
format.
Sec. 773.107 Application approval.
If a State DOT's application is approved, then the State DOT will
be invited to enter into a written Memorandum of Understanding (MOU)
with the FHWA, as provided in 23 U.S.C. 327. None of FHWA's
responsibilities under NEPA or other environmental laws may be assumed
by the State DOT prior to execution of the MOU.
Sec. 773.108 Application amendments.
(a) After a State DOT submits its application to the FHWA, but
prior to the execution of a MOU, the State DOT may amend its
application at any time to request additional highway projects, classes
of highway projects, or more environmental responsibilities. However,
prior to making any such amendments, the State DOT must provide notice
and solicit public comments with respect to the intended amendments. In
submitting the amendment to the FHWA, the State DOT must provide copies
of all comments received and note the changes, if any, that were made
in response to the comments.
(b) A State DOT may amend its application no earlier than one year
after a MOU has been executed to request additional highway projects,
classes of highway projects, or more environmental responsibilities.
However, prior to making any such amendments, the State DOT must
provide notice and solicit public comments with respect to the intended
amendments. In submitting the amendment to the FHWA, the State DOT must
provide copies of all comments received and note the changes, if any,
that were made in response to the comments.
Appendix A to Part 773
FHWA Environmental Responsibilities that may be assigned under section
6005
Federal Procedures
National Environmental Policy Act (NEPA), 42 U.S.C. 4321-43351.
FHWA Environmental Regulations at 23 CFR Part 771, 772 and 777
CEQ Regulations at 40 CFR 1500-1508
Clean Air Act, 42 U.S.C. 7401-7671(q). Any determinations that do
not involve conformity.
Noise
Compliance with the noise regulations at 23 CFR part 772
Wildlife
Section 7 of the Endangered Species Act of 1973, 16 U.S.C. 1531-
1544, and Section 1536
Marine Mammal Protection Act, 16 U.S.C. 1361
Anadromous Fish Conservation Act, 16 U.S.C. 757(a)-757(g)
Fish and Wildlife Coordination Act, 16 U.S.C. 661-667(d)
Migratory Bird Treaty Act, 16 U.S.C. 703-712
Magnuson-Stevenson Fishery Conservation and Management Act of 1976,
as amended, 16 U.S.C. 1801 et seq.
Historic and Cultural Resources
Section 106 of the National Historic Preservation Act of 1966, as
amended, 16 U.S.C. 470(f) et seq.
Archeological Resources Protection Act of 1977, 16 U.S.C. 470(aa)-11
Archeological and Historic Preservation Act, 16 U.S.C. 469-469(c)
Native American Grave Protection and Repatriation Act (NAGPRA), 25
U.S.C. 3001-3013
Social and Economic Impacts
American Indian Religious Freedom Act, 42 U.S.C. 1996
Farmland Protection Policy Act (FPPA), 7 U.S.C. 4201-4209
Water Resources and Wetlands
Clean Water Act, 33 U.S.C. 1251-1377
Section 404
Section 401
Section 319
Coastal Barrier Resources Act, 16 U.S.C. 3501-3510
Coastal Zone Management Act, 16 U.S.C. 1451-1465
Safe Drinking Water Act (SDWA), 42 U.S.C. 300(f)-300(j)(6)
Section 10 of the 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
TEA-21 Wetlands Mitigation, 23 U.S.C. 103(b)(6)(m), 133(b)(11)
Flood Disaster Protection Act, 42 U.S.C. 4001-4128
Parklands
Section 4(f) of the Department of Transportation Act of 1966, 49
U.S.C. 303
Land and Water Conservation Fund (LWCF), 16 U.S.C. 4601-4604
Hazardous Materials
Comprehensive Environmental Response, Compensation, and Liability
Act (CERCLA), 42 U.S.C. 9601-9675
Superfund Amendments and Reauthorization Act of 1986 (SARA)
Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6901-
6992(k)
Executive Orders Relating to Highway Projects
E.O. 11990 Protection of Wetlands
E.O. 11988 Floodplain Management
E.O. 12898 Federal Actions to Address Environmental Justice in
Minority Populations and Low Income Populations
E.O. 13112 Invasive Species
[FR Doc. E7-2375 Filed 2-9-07; 8:45 am]
BILLING CODE 4910-22-P