[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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