[Federal Register Volume 88, Number 20 (Tuesday, January 31, 2023)]
[Notices]
[Pages 6358-6361]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-01991]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
[Docket No. FHWA-2022-0032]
Renewal Package 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), Department of
Transportation (DOT).
ACTION: Notice; request for comments.
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SUMMARY: This notice announces that FHWA has received and reviewed a
renewal package from the Alaska Department of Transportation & Public
Facilities (DOT&PF) 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
[[Page 6359]]
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 DOT&PF outlining how
the State will implement the Program with FHWA oversight. The public is
invited to comment on DOT&PF's renewal package, which includes the
draft renewal MOU that describes the proposed assignments and
assumptions of environmental review, consultation, and other
activities.
DATES: Please submit comments by March 3, 2023.
ADDRESSES: You may submit comments, identified by DOT Document
Management System (DMS) Docket Number FHWA-2022-0032, 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 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.
Hand Delivery: West Building Ground Floor, Room W12-140,
1200 New Jersey Ave. SE, Washington, DC 20590 between 9 a.m. and 5 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: Melissa Parker by email at: [email protected] or by
telephone at (907) 586-7430. The FHWA Alaska Division office's normal
business hours are 8 a.m. to 4:30 p.m. Alaska Time, Monday-Friday,
except for Federal holidays. For the State of Alaska: Douglas Kolwaite,
by email at: [email protected] or by telephone at (907) 465-
8413. State 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: https://www.archives.gov/ and the Government Publishing
Office's database at: https://www.govinfo.gov/. An electronic version
of the proposed renewal MOU may be downloaded by accessing the DOT DMS
docket, as described above, at https://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 DOT&PF entered the Program on November 13, 2017, 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 (23 CFR part 773).
On May 15, 2016, prior to submittal of its application to FHWA,
DOT&PF published in the Alaska Administrative Register and solicited
public comment on its draft application to participate in the Program.
After considering and addressing public comments, DOT&PF submitted its
application to FHWA on July 12, 2016. The application served as the
basis for developing the MOU identifying the responsibilities and
obligations DOT&PF would assume. The FHWA published a notice of the
draft MOU in the Federal Register on August 25, 2017, soliciting the
views of the public and Federal agencies on FHWA's preliminary decision
to approve the application. Following the comment period, FHWA and
DOT&PF considered comments and proceeded to execute the MOU (2017 MOU).
Effective November 13, 2017, DOT&PF assumed FHWA's responsibilities
under NEPA, and the responsibilities for reviews under other Federal
environmental requirements. The MOU was amended on August 20, 2020, to
clarify the categories of excluded projects and to reflect that DOT&PF
had assumed responsibility for the environmental review of the three
projects (Gravina Access, Juneau Access, and Sterling Highway) that
were excluded from assignment in the 2017 MOU.
On May 11, 2022, after coordination with FHWA, DOT&PF submitted a
renewal package in accordance with the renewal regulations in 23 CFR
773.115. On September 13, 2022, DOT&PF sent a letter requesting further
discussion on additional language in the renewal MOU. In a letter dated
October 14, 2022, FHWA granted an extension of the MOU until March 13,
2023.
Under the proposed renewal 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). Excluded from
assignment are any Federal Lands Highway projects authorized under 23
U.S.C. 202, 203, 204, and Section 1123 of the Fixing America's Surface
Transportation Act (Pub. L. 114-94), unless such projects will be
designed and constructed by DOT&PF; any project that crosses or is
adjacent to international boundaries; projects under the Recreational
Trails Program (23 U.S.C. 206); Denali Commission projects; Shakwak
Program projects; any projects advanced by direct recipients other than
DOT&PF; 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; NEPA review for private
requests for changes in controlled access, unless such projects will be
designed and constructed by DOT&PF; and projects designed and
constructed by FHWA under a 23 U.S.C. 308 agreement between the FHWA
Western Federal Lands Highway Division and DOT&PF.
The assignment also would give DOT&PF the responsibility to conduct
the following environmental review, consultation, and other related
activities:
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 6360]]
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 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
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 Executive Orders not listed, but related to highway
projects
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 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 Archeological Data, 54 U.S.C.
312501-312508
Section 106 of the National Historic Preservation Act of 1966,
as amended, 54 U.S.C. 306108
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. 1996
Farmland Protection Policy Act (FPPA), 7 U.S.C. 4201-4209
Water Resources and Wetlands
Clean Water Act, 33 U.S.C. 1251-1387
Section 319, 33 U.S.C. 1329
Section 401, 33 U.S.C. 1341
Section 402, 33 U.S.C. 1342
Section 404, 33 U.S.C. 1344
Emergency Wetlands Resources Act, 16 U.S.C. 3901 and 3921
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 Appropriation Act of 1899, 33 U.S.C. 401,
403, and 408
Safe Drinking Water Act (SDWA), 42 U.S.C. 300f-300j-26
Wetlands Mitigation, 23 U.S.C. 119(g)
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 proposed renewal MOU would allow DOT&PF 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 DOT&PF 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 DOT&PF also may assist FHWA with formal
consultations, with consent of a Tribe, but FHWA remains responsible
for the consultation. The DOT&PF 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 DOT&PF's desire to continue its
participation in the Program. The FHWA and DOT&PF have agreed to modify
some of the provisions in the MOU to, among other things: clarify the
categories of projects excluded from assignment; designate a Senior
Agency Official at DOT&PF 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 DOT&PF's website at https://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 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.)
[[Page 6361]]
Authority: 23 U.S.C. 327; 42 U.S.C. 4331, 4332; 23 CFR part 773; 40
CFR 1507.3, 1508.4.
Issued on: January 26, 2023.
Andrew Rogers,
Chief Counsel, Federal Highway Administration.
[FR Doc. 2023-01991 Filed 1-30-23; 8:45 am]
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