[Federal Register Volume 88, Number 187 (Thursday, September 28, 2023)]
[Notices]
[Pages 66930-66931]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-21279]



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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

[Docket No. FHWA-2023-0032]


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

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

ACTION: Notice of proposed MOU, request for comments.

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SUMMARY: The FHWA and the State of Arizona, acting by and through its 
Department of Transportation (State), propose a second renewal of the 
State's participation in the State Assumption of Responsibility for 
Categorical Exclusions program. This program allows FHWA to assign to 
States its authority and responsibility for determining whether certain 
designated activities within the geographic boundaries of the State, as 
specified in the proposed Memorandum of Understanding (MOU), are 
categorically excluded from the requirement to prepare an environmental 
assessment or an environmental impact statement under the National 
Environmental Policy Act. This MOU would renew and continue the State's 
participation in the program. The renewed MOU will amend the existing 
MOU by incorporating the following changes: Including language to 
reference the State's responsibility to report project impacts to 
environmental justice populations; clarifying that this assignment 
applies to any action to which a CE is applicable including non-highway 
projects; and adding a reference to the Final April 2020 Programmatic 
Agreement Pursuant to Section 106 of the National Historic Preservation 
Act Regarding Implementation of Federal-Aid Transportation Projects in 
the State of Arizona (September 2020).

DATES: Comments must be received on or before October 30, 2023.

ADDRESSES: You may submit comments, identified by DOT Document 
Management System (DMS) Docket Number [FHWA-2023-0032], by any of the 
methods described below. Electronic or facsimile comments are preferred 
because Federal offices experience intermittent mail delays from 
security screening.
    Website: www.regulations.gov/. Follow the instructions for 
submitting comments on the DOT electronic docket site.
    Facsimile (Fax): 1-202-493-2251.
    Mail: Docket Management Facility; U.S. Department of 
Transportation, 1200 New Jersey Ave. SE, Washington, DC 20590.
    Hand Delivery: 1200 New Jersey Ave. SE, Washington, DC 20590, 
between 9 a.m. and 5 p.m. e.t., Monday through Friday, except Federal 
holidays.
    For access to the docket to view a complete copy of the proposed 
MOU, or to read background documents or comments received, go to 
www.regulations.gov/ at any time or to 1200 New Jersey Ave. SE, 
Washington, DC 20590, between 9 a.m. and 5 p.m. e.t., Monday through 
Friday, except for Federal holidays.

FOR FURTHER INFORMATION CONTACT: 
    For FHWA: Ms. Rebecca Yedlin, Environmental Program Manager, 
Federal Highway Administration, 4000 North Central Avenue, Suite 1500, 
Phoenix, AZ 85012; by email at [email protected] or by telephone 
at 602-382-8979. The FHWA Arizona Division Office normal business hours 
are 8 a.m. to 4:30 p.m. (Arizona Time), Monday-Friday, except for 
Federal Holidays.
    For State: Mr. Steve Olmsted, NEPA Assignment Manager, Arizona 
Department of Transportation, 205 S 17th Ave., Mail Drop EM02, Phoenix, 
AZ 85007; by email at [email protected] or by telephone at 602-712-
6421. The Arizona Department of Transportation normal business hours 
are 8 a.m. to 4:30 p.m. (Arizona Time), Monday-Friday, except for State 
and Federal holidays.

SUPPLEMENTARY INFORMATION: 
    Electronic Access: Internet users may reach the Office of the 
Federal Register's home page at: www.federalregister.gov and the 
Government Printing Office's database: www.GovInfo.gov. An electronic 
version of the proposed MOU may be downloaded by accessing the DOT DMS 
docket, as described above, at www.regulations.gov/.

Background

    Section 326 of title 23, United States Code (U.S.C.), creates a 
program that allows the Secretary of the DOT (Secretary), to assign, 
and a State to assume, responsibility for determining whether certain 
highway projects are included within classes of action that are 
categorically excluded (CE) from requirements for environmental 
assessments or environmental impact statements pursuant to the National 
Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq. (NEPA). In 
addition, this program allows the assignment of other environmental 
review requirements applicable to these actions. The FHWA is authorized 
to act on behalf of the Secretary with respect to these matters. 
Through an amended MOU, FHWA would renew Arizona's participation in 
this program for the second time. The original MOU became effective on 
January 3, 2018, for an initial term of three (3) years. The first 
renewal became effective on January 4, 2021, for a second term of three 
(3) years. The second renewal is set to supersede the first renewal MOU 
prior to its expiration date on January 4, 2024.
    Stipulation I(B) of the MOU describes the types of actions for 
which the State would assume project-level responsibility for 
determining whether the criteria for a CE are met. Statewide decision-
making responsibility would be assigned for all activities within the 
categories listed in 23 CFR 771.117(c) and those listed as examples in 
23 CFR 771.117(d). In addition to the NEPA CE determination 
responsibilities, the MOU would assign to the State the responsibility 
for conducting Federal environmental review, consultation, and other 
related activities for projects that are subject to the MOU with 
respect to the following Federal laws and Executive Orders:
    (1) Clean Air Act (CAA), 42 U.S.C. 7401-7671q. Including 
determinations for project-level conformity if required for the 
project.
    (2) Noise Control Act of 1972, 42 U.S.C. 4901-4918; Compliance with 
the noise regulations in 23 CFR part 772 (except approval of the State 
noise requirements in accordance with 23 CFR 772.7).
    (3) Section 7 of the Endangered Species Act of 1973, 16 U.S.C. 
1531-1544, and 1536.
    (4) Fish and Wildlife Coordination Act, 16 U.S.C. 661-667d.
    (5) Migratory Bird Treaty Act, 16 U.S.C. 703-712.
    (6) Section 106 of the National Historic Preservation Act of 1966, 
as amended, 54 U.S.C. 306108.
    (7) Archeological Resources Protection Act of 1979, 16 U.S.C. 
470aa, et seq.
    (8) Section 4(f) of the Department of Transportation Act of 1966, 
23 U.S.C. 138 and 49 U.S.C. 303; 23 CFR part 774.
    (9) Title 54, Chapter 3125--Preservation of Historical and 
Archeological Data, 54 U.S.C. 312501-312508.
    (10) Native American Grave Protection and Repatriation Act 
(NAGPRA), 25 U.S.C. 3001-3013; 18 U.S.C. 1170.

[[Page 66931]]

    (11) American Indian Religious Freedom Act, 42 U.S.C. 1996.
    (12) Farmland Protection Policy Act (FPPA), 7 U.S.C. 4201-4209.
    (13) Clean Water Act, 33 U.S.C. 1251-1377.
    (14) Safe Drinking Water Act (SDWA), 42 U.S.C. 300f-300j-6.
    (15) Rivers and Harbors Act of 1899, 33 U.S.C. 403.
    (16) Wild and Scenic Rivers Act, 16 U.S.C. 1271-1287.
    (17) Emergency Wetlands Resources Act, 16 U.S.C. 3921, 3931.
    (18) Flood Disaster Protection Act, 42 U.S.C. 4001-4128.
    (19) FHWA wetland and natural habitat mitigation regulations, 23 
CFR part 777.
    (20) Section 4(f) of the Department of Transportation Act of 1966, 
23 U.S.C. 138 and 49 U.S.C. 303; and 23 CFR part 774.
    (21) Land and Water Conservation Fund (LWCF), Public Law 88-578, 78 
Stat. 897 (known as Section 6(f)).
    (22) Comprehensive Environmental Response, Compensation, and 
Liability Act (CERCLA), 42 U.S.C. 9601-9675.
    (23) Superfund Amendments and Reauthorization Act of 1986 (SARA), 
42 U.S.C. 9671-9675.
    (24) Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6901-
6992k.
    (25) Landscaping and Scenic Enhancement (Wildflowers), 23 U.S.C. 
319.
    (26) E.O. 11990, Protection of Wetlands.
    (27) 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).
    (28) E.O. 12898, Federal Actions to Address Environmental Justice 
in Minority Populations and Low-Income Populations.
    (29) E.O. 11593, Protection and Enhancement of Cultural Resources.
    (30) E.O. 13007, Indian Sacred Sites.
    (31) E.O. 13112, Invasive Species.
    (32) Planning and Environmental Linkages, 23 U.S.C. 168, except for 
those FHWA responsibilities associated with 23 U.S.C. 134 and 135.
    (33) Programmatic Mitigation Plans, 23 U.S.C. 169 except for those 
FHWA responsibilities associated with 23 U.S.C. 134 and 135.
    (34) E.O. 13985, Advancing Racial Equity and Support for 
Underserved Communities Through the Federal Government.
    (35) E.O. 14008, Tackling the Climate Crisis at Home and Abroad.
    (36) E.O. 14091, Further Advancing Racial Equity and Support for 
Underserved Communities Through the Federal Government.
    (37) E.O. 14096, Revitalizing Our Nation's Commitment to 
Environmental Justice for All.
    The MOU allows the State to act in the place of the FHWA in 
carrying out the functions described above, except with respect to 
government-to-government consultations with federally recognized Indian 
tribes. The FHWA will retain responsibility for conducting formal 
government-to-government consultation with federally recognized Indian 
tribes, which is required under some of the above-listed laws and 
executive orders. The State also may assist FHWA with formal 
consultations, with consent of a tribe, but FHWA remains responsible 
for the consultation. This assignment includes transfer to the State of 
Arizona the obligation to fulfill the assigned environmental 
responsibilities on any proposed projects meeting the criteria in 
Stipulation I(B) of the MOU that were determined to be CEs prior to the 
effective date of the proposed MOU but that have not been completed as 
of the effective date of the MOU. The FHWA may terminate the State's 
participation in this program if FHWA provides the State a notification 
of noncompliance, and a period of not less than 120 days to take 
corrective action as FHWA determines necessary, and if the State fails 
to take satisfactory corrective action as determined by FHWA.
    The FHWA will consider the comments submitted on the proposed MOU 
when making its decision on whether to execute this second renewal MOU. 
A copy of the proposed draft MOU is also posted on the Arizona 
Department of Transportation website https://azdot.gov/business/environmental-planning/ce-assignment-and-nepa-assignment for review. 
The FHWA will make the final, executed MOU publicly available.

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

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

Karla Petty,
Division Administrator, Phoenix, Arizona.
[FR Doc. 2023-21279 Filed 9-27-23; 8:45 am]
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