[Federal Register Volume 87, Number 75 (Tuesday, April 19, 2022)]
[Notices]
[Pages 23309-23311]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-08293]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

[Docket No. FHWA-2022-0005]


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

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

ACTION: Notice of proposed MOU and request for comments.

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SUMMARY: This notice announces that FHWA has received and reviewed a 
renewal package from the Florida Department of Transportation (FDOT) 
requesting renewed participation in the Surface Transportation Project 
Delivery Program (Program). This Program allows for FHWA to assign, and 
States to assume, responsibilities under the National Environmental 
Policy Act (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 determined the renewal package to 
be complete and developed a draft renewal MOU with FDOT outlining how 
the State will implement the Program with FHWA oversight. The public is 
invited to comment on FDOT's request, including its renewal package and 
the proposed renewal MOU, which includes the proposed assignments and 
assumptions of environmental review, consultation and other activities.

DATES: Please submit comments by May 19, 2022.

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 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 20590-0001 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 www.regulations.gov, including any personal 
information provided.

FOR FURTHER INFORMATION CONTACT: For FHWA: Karen Brunelle by email at: 
[email protected] or by telephone at (850) 553-2218. The FHWA 
Florida Division Office's normal business hours are 8 a.m. to 4:30 p.m. 
e.t., Monday-Friday, except for Federal holidays. For the State of 
Florida: Jennifer Marshall, P.E. by email at: 
[email protected] or by telephone at (863) 519-2239. 
State business hours are the same as above although State holidays may 
not completely coincide with Federal holidays.

SUPPLEMENTARY INFORMATION: 

Electronic Access

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

Background

    Section 327 of Title 23, United States Code (U.S.C.), allows the 
Secretary of the DOT to assign, and a State to assume, the 
responsibilities under the NEPA (42 U.S.C. 4321 et seq.) and all or 
part of the responsibilities for environmental review, consultation, or 
other actions required under certain Federal environmental laws 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.
    The FDOT entered the Program on December 14, 2016, after submitting 
its application to FHWA, obtaining FHWA's approval, and entering into a 
MOU in accordance with 23 U.S.C. 327 and FHWA's application regulations 
for the Program (the original 23 CFR part 773).
    On April 15, 2016, prior to submittal of its application to FHWA, 
FDOT published in the Florida Administrative Register and solicited 
public comment on its draft application to participate in the Program. 
After considering and addressing public comments, FDOT submitted its 
application to FHWA on May 31, 2016. The application served as the 
basis for developing the MOU identifying the responsibilities and 
obligations FDOT would assume. The FHWA published a notice of the draft 
MOU in the Federal Register on November 1, 2016, soliciting the views 
of the public and Federal agencies on FHWA's preliminary decision to 
approve the application. Following the comment period, FHWA and FDOT 
considered comments and proceeded to execute the MOU (2016 MOU). 
Effective December 14, 2016, FDOT assumed FHWA's responsibilities under 
NEPA, and the responsibilities for reviews under other Federal 
environmental requirements.
    On May 12, 2021, after coordination with FHWA, FDOT submitted a 
renewal package in accordance with the renewal regulations in 23 CFR 
773.115. On October 20, 2021, FDOT sent a letter requesting an 
extension to the 2016 MOU in order to allow further discussion on 
additional language in the renewal MOU. In a letter dated

[[Page 23310]]

December 8, 2021, FHWA granted an extension of the MOU until April 29, 
2022. Under the proposed renewal MOU, FHWA would assign to the State, 
through FDOT, the responsibility for making decisions on the following 
types of highway projects:
    1. All Class I, or environmental impact statement (EIS) projects, 
both on the State highway system (SHS) and Local Agency Program (LAP) 
projects off the SHS that are funded by FHWA or require FHWA approvals. 
The Class I projects under the proposed renewal MOU include two 
projects excluded from assignment under the 2016 MOU. Since that time, 
Records of Decision have been issued, and statutes of limitation for 
initiation of legal proceedings have passed, for both these projects. 
Therefore, responsibility and liability for any future environmental 
review are assigned to FDOT.
    2. All Class II, or categorically excluded projects, both on the 
SHS and LAP projects off the SHS that are funded by FHWA or require 
FHWA approvals.
    3. All Class III, or environmental assessment projects, both on the 
SHS and LAP projects off the SHS that are funded by FHWA or require 
FHWA approvals.
    4. Projects funded by other Federal agencies, or projects without 
any Federal funding, of any Class that also include funding by FHWA or 
require FHWA approvals and meet the definition of a highway project 
found at 23 CFR 773.103. For these projects, FDOT would not assume the 
NEPA responsibilities of other Federal agencies. However, FDOT may use 
or adopt other Federal agencies' NEPA analyses or documents consistent 
with 40 CFR 1500-1508, current law, and DOT and FHWA regulations, 
policies, and guidance.
    Excluded from assignment are highway projects authorized under 23 
U.S.C. 202 and 203; highway projects under 23 U.S.C. 204, unless the 
project will be designed and constructed by FDOT; projects that cross 
State boundaries; projects that cross or are adjacent to international 
boundaries; any projects that may be designed and constructed by FHWA 
under a 23 U.S.C. 308 agreement between the FHWA Eastern Federal Lands 
Highway Division and FDOT; projects under the Recreational Trails 
Program at 23 U.S.C. 206; and any projects advanced by direct 
recipients of Federal-aid highway funds other than FDOT except when 
pursuant to a LAP Agreement between FDOT and the direct recipient.
    The assignment also would give FDOT the responsibility to conduct 
the following environmental review, consultation, and other related 
activities:

Air Quality

 Clean Air Act (CAA), 42 U.S.C. 7401-7671q, with the exception 
of any project level conformity determinations (42 U.S.C. 7506)

Noise

 Noise Control Act of 1972, 42 U.S.C. 4901-4918
 Compliance with the noise regulations in 23 CFR 772
 Airport Noise and Capacity Act of 1990, 49 U.S.C. 47521-47534

Wildlife

 Endangered Species Act of 1973, 16 U.S.C. 1531-1544
 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
 Bald and Golden Eagle Protection Act, 16 U.S.C. 668-668d
 Magnuson-Stevens Fishery Conservation and Management Act of 
1976, as amended, 16 U.S.C. 180l-1891d et seq., with Essential Fish 
Habitat requirements at 16 U.S.C. 1855(b)(2)

Hazardous Materials Management

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

Historic and Cultural Resources

 Section 106 of the National Historic Preservation Act of 1966, 
as amended, 54 U.S.C. 306101 et seq.
 23 U.S.C. 138 and Section 4(f) of the Department of 
Transportation Act of 1966, 49 U.S.C. 303 and implementing regulations 
at 23 CFR part 774
 Archeological Resources Protection Act of 1979, 16 U.S.C. 
470aa-470mm
 Title 54, Chapter 31, Preservation of Historical and 
Archeological Data, 54 U.S.C. 312501-312508
 Native American Grave Protection and Repatriation Act, 25 
U.S.C. 3001-30131; 18 U.S.C. 1170

Social and Economic Impacts

 American Indian Religious Freedom Act, 42 U.S.C. 1996
 Farmland Protection Policy Act, 7 U.S.C. 4201-4209

Water Resources and Wetlands

 Clean Water Act, 33 U.S.C. 1251-1387 (Sections 319, 401, and 
404)
 Coastal Barrier Resources Act, 16 U.S.C. 3501-3510
 Coastal Zone Management Act, 16 U.S.C. 1451-1466
 Safe Drinking Water Act, 42 U.S.C. 300f-300j-26
 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. 3901 and 3921
 Wetlands Mitigation, 23 U.S.C. 119(g) and 133(b)
 Flood Disaster Protection Act, 42 U.S.C. 4001-4130
 FHWA wetland and natural habitat mitigation regulations, 23 
CFR part 777

Parklands

 Section 4(f) of the Department of Transportation Act of 1966, 
49 U.S.C. 303
 Land and Water Conservation Fund Act, 54 U.S.C. 200302-200310

FHWA-Specific

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

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

 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. 11990, Protection of Wetlands
 E.O. 12898, Federal Actions to Address Environmental Justice 
in Minority Populations and Low Income Populations
 E.O. 13112, Invasive Species.
 E.O. 13985, Advancing Racial Equity and Support for 
Underserved Communities Through the Federal Government
 E.O. 13990, Protecting Public Health and the Environment and 
Restoring Science to Tackle the Climate Crisis
 E.O. 14008, Tackling the Climate Crisis at Home and Abroad
 Other E.O.'s not listed, but related to highway projects.


[[Page 23311]]


    The proposed renewal MOU would allow FDOT to continue 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 E.O.'s. The FDOT will 
continue to handle routine consultations with the Tribes and 
understands that a Tribe has the right to direct consultation with FHWA 
upon request. The FDOT also may assist FHWA with formal consultations, 
with consent of a Tribe, but FHWA remains responsible for the 
consultation. The FDOT also 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.
    The MOU content reflects FDOT's desire to continue its 
participation in the Program. The FHWA and FDOT have agreed to modify 
some of the provisions in the MOU to, among other things: Clarify the 
categories of projects for which FDOT is assigned responsibility, 
including two Class I projects previously excluded from assignment 
under the 2016 MOU; exclude certain highway projects from assignment, 
including projects under the Recreational Trails Program and certain 
direct recipient projects; designate a Senior Agency Official at FDOT 
consistent with 40 CFR 1508.1(dd); remove auditing requirements; revise 
monitoring requirements; update record retention requirements; provide 
for enhanced reporting to FHWA on issues including environmental 
justice analysis and associated mitigation, where applicable; revise 
provisions related to data and information requests; and revise 
provisions related to FHWA-initiated withdrawal of assigned projects.
    A copy of the proposed renewal MOU and renewal package may be 
viewed on the DOT DMS 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 FDOT's website at https://www.fdot.gov/environment/nepaassignment.shtm. The FHWA Florida Division, in 
consultation with FHWA Headquarters, will consider the comments 
submitted when making its decision on the proposed MOU revision. Any 
final renewal MOU approved by FHWA may include changes based on 
comments and consultations relating to the proposed renewal 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 773; 40 CFR 
1507.3, 1508.4.

Stephanie Pollack,
Deputy Administrator, Federal Highway Administration.
[FR Doc. 2022-08293 Filed 4-18-22; 8:45 am]
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