[Federal Register Volume 89, Number 70 (Wednesday, April 10, 2024)]
[Notices]
[Pages 25314-25316]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-07615]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

[Docket No. FRA-2024-0039]


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

AGENCY: Federal Railroad Administration (FRA), U.S. Department of 
Transportation (DOT).

ACTION: Notice, request for comments.

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SUMMARY: This notice announces that FRA has received and reviewed a 
renewal package from the State of California (State) acting through the 
California State Transportation Agency (CalSTA) and California High-
Speed Rail Authority (Authority) requesting renewed participation in 
the Surface Transportation Project Delivery Program (Program). Under 
the Program, FRA may assign, and the State may assume, responsibilities 
under the National Environmental Policy Act (NEPA), and all or part of 
FRA's responsibilities for environmental review, consultation, or other 
actions required under any Federal environmental laws with respect to 
one or more railroad projects within the State. FRA has determined the 
renewal package to be complete, and developed a draft renewal MOU with 
CalSTA and the Authority outlining how the State will implement the 
Program with FRA oversight. The public is invited to comment on the 
State'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: Comments must be received on or before May 10, 2024.

ADDRESSES: Comments related to Docket No. FRA-2024-0039 may be 
submitted by going to https://www.regulations.gov and following the 
online instructions for submitting comments.
    Instructions: All submissions must refer to the Federal Railroad 
Administration and the docket number in this notice (FRA-2024-0039). 
Note that all submissions received, including any personal information 
provided, will

[[Page 25315]]

be posted without change and will be available to the public on https://www.regulations.gov. You may review DOT's complete Privacy Act 
Statement in the Federal Register published April 11, 2000 (65 FR 
19477), or at https://www.transportation.gov/privacy.

FOR FURTHER INFORMATION CONTACT: For questions about this notice, for 
FRA, please contact Ms. Lana Lau, Supervisory Environmental Protection 
Specialist, Office of Environmental Program Management, Federal 
Railroad Administration, telephone (202) 923-5314, email: 
[email protected]. For the Authority, please contact Mr. Scott 
Rothenberg, NEPA Assignment Manager, Environmental Services, California 
High-Speed Rail Authority, telephone: (916) 403-6936; email: 
[email protected].

SUPPLEMENTARY INFORMATION: 
    Background: Section 327 of Title 23, United States Code (23 U.S.C. 
327) establishes the Surface Transportation Project Delivery Program 
(Program). It allows the Secretary of the U.S. Department of 
Transportation (Secretary) to assign, and a State to assume, 
responsibility for all or part of the Secretary's responsibilities for 
environmental review, consultation, or other actions required under 
NEPA (42 U.S.C. 4321 et seq.) and any Federal environmental law with 
respect to one or more highway projects within the State, as well as 
one or more railroad, public transportation, and/or multimodal 
projects.\1\ FRA is authorized to act on behalf of the Secretary with 
respect to these matters for railroad projects.
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    \1\ The Secretary may not assign its responsibility for making 
any conformity determination required under section 176 of the Clean 
Air Act. Also not assignable is Government to Government 
consultation with federally recognized Indian Tribes.
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    The State of California initially participated in the Federal 
Highway Administration's (FHWA) Surface Transportation Project Delivery 
Pilot Program (a predecessor to the Program) from July 1, 2007, through 
September 30, 2012. In 2012, the Moving Ahead for Progress in the 21st 
Century Act (MAP-21) amended 23 U.S.C. 327 to establish the permanent 
Program. As a result, on October 1, 2012, the State, acting through 
Caltrans, entered into a MOU with FHWA that bridged the pilot Program 
with the Program. Previously, MOUs under the Program included a term of 
5 years. However, in 2021, the Infrastructure Investment and Jobs Act 
amended 23 U.S.C. 327 to require MOUs to have a term of 10 years if the 
state has participated in the Program (or predecessor program) for at 
least 10 years. The State has participated in the Program for 15 years, 
including the State's participation in the pilot program.
    On July 23, 2019, the State of California, acting through CalSTA 
and the Authority, assumed FRA's responsibilities for one or more 
railroad projects in the state, after submitting its application to 
FRA, obtaining FRA's approval, and entering into an MOU in accordance 
with 23 U.S.C. 327 and the application regulations for the Program (23 
CFR part 773). On May 22, 2023, the Secretary of CalSTA notified FRA of 
its intention to renew its participation in the Program. On July 21, 
2023, the Authority submitted a Summary of Key Changes, which 
summarized the State's proposed changes to its NEPA Assignment program 
and requested FRA's determination on whether the proposed changes 
constituted changes warranting statewide notice for public comment 
prior to the formal submittal of the renewal application. On January 4, 
2024, FRA concluded that no significant changes were proposed, or new 
assignment responsibilities sought, that would warrant statewide notice 
for public comment before the Authority formally submits a renewal 
application to FRA. On January 25, 2024, the State submitted the 
renewal package in accordance with 23 CFR 773.115. Since the State's 
submittal, FRA and the State have made minor changes to Section 3.3.1 
of the MOU to clarify the types of projects that would be suitable for 
assignment, and these changes are included in the proposed renewal MOU.
    Under the proposed renewal MOU, FRA would assign to the State, 
acting through CalSTA and the Authority, the responsibility for making 
decisions on railroad projects as described in the State's application 
and in Section 3.3 of the draft renewal MOU. Excluded from assignment 
are the following:
    (1) Railroad projects that cross state boundaries or that cross or 
are adjacent to international boundaries. For purposes of the State's 
application and the proposed renewal MOU, a project is considered 
``adjacent to international boundaries'' if it requires the issuance of 
a new, or modification of an existing, Presidential Permit.
    (2) As provided at 23 U.S.C. 327(a)(2)(D), any railroad project 
that is not assumed by the State as identified in the State's 
application and the proposed renewal MOU, remains the responsibility of 
FRA.
    Under the proposed renewal MOU, State, acting through CalSTA and 
CHSRA, would also assume the responsibility to conduct the following 
environmental review, consultation, and other related activities for 
project delivery:

Environmental Review Process

Efficient environmental reviews for project decision-making, 23 U.S.C. 
139 Efficient environmental reviews, 49 U.S.C. 24201

Air Quality

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

Noise

Noise Control Act of 1972, 42 U.S.C. 4901-4918

Wildlife

Endangered Species Act of 1973 (ESA), 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
Bald and Golden Eagle Protection Act, 16 U.S.C. 668-668d
Migratory Bird Treaty Act, 16 U.S.C. 703-712
Magnuson-Stevens Fishery Conservation and Management Act of 1976, as 
amended, 16 U.S.C. 1801-1891d

Hazardous Materials Management

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

Historic and Cultural Resources

National Historic Preservation Act of 1966, as amended, 54 U.S.C. 
300101-307108, et seq.
Archeological and Historic Preservation Act of 1966, as amended, 16 
U.S.C. 469-469c
Archeological Resources Protection Act, 16 U.S.C. 470aa-470mm, Title 
54, Chapter 3125--Preservation of Historical and Archeological Data, 54 
U.S.C. 312501-312508
Native American Graves Protection and Repatriation Act (NAGPRA), 25 
U.S.C. 3001-3013; 18 U.S.C. 1170

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

[[Page 25316]]

Water Resources and Wetlands

Clean Water Act, 33 U.S.C. 1251-1387 (Sections 401, 402, 404, 408, and 
Section 319)
Safe Drinking Water Act (SDWA), 42 U.S.C. 300f-300j-26
Rivers and Harbors Act of 1899, 33 U.S.C. 401 and 403
Wild and Scenic Rivers Act, 16 U.S.C. 1271-1287
Emergency Wetlands Resources Act, 16 U.S.C. 3901 and 3921
Flood Disaster Protection Act, 42 U.S.C. 4001-4133
General Bridge Act of 1946, 33 U.S.C. 525-533
Coastal Barrier Resources Act, 16 U.S.C. 3501-3510
Coastal Zone Management Act, 16 U.S.C. 1451-1466
Wetlands Mitigation, 23 U.S.C. 119(g)

Parklands and Other Special Land Uses

49 U.S.C. 303 (Section 4(f))
Land and Water Conservation Fund (LWCF) Act, 54 U.S.C. 200302-200310

Executive Orders

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, as amended by E.O. 13751, Safeguarding 
the Nation from the Impacts of 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 Change Crisis at Home and Abroad
E.O. 14096, Revitalizing Our Nation's Commitment to Environmental 
Justice for All

    The proposed renewal MOU would allow the State, acting through 
CalSTA and the Authority, to continue to act in the place of FRA in 
carrying out the environmental review-related functions described 
above, except with respect to Government-to-Government consultations 
with federally recognized Indian Tribes. The State, acting through 
CalSTA and the Authority, would continue to handle routine 
consultations with the Tribes and understands that a Tribe has the 
right to direct consultation with FRA upon request. The State, acting 
through CalSTA and the Authority, may assist FRA with Government-to-
Government consultations, with consent of a Tribe, but FRA remains 
responsible for the consultation.
    In addition, the State, acting through CalSTA and the Authority, 
would not assume FRA'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 the State's, acting through CalSTA and the 
Authority, desire to continue its participation in the Program. FRA and 
the State, acting through CalSTA and the Authority, have agreed to 
modify some of the provisions in the MOU to, among other things: 
include an updated list of environmental laws, presidential executive 
orders and related guidance, including added references to Title VI of 
the Civil Rights Act of 1964 and environmental justice; provide updated 
Program information, organization charts, and staffing structure; and 
provide updated policies and processes, including updates to monitoring 
and oversight and quality assurance and quality control (QA/QC).
    The Bipartisan Infrastructure Law (Infrastructure Investment and 
Jobs Act, Pub. L. 117-58), enacted on November 15, 2021, amended 23 
U.S.C. 327(c)(5) to require that MOUs have a term of 10 years if a 
State that has participated in the Program (or predecessor program) for 
at least 10 years. The State has participated in the Program for 15 
years, inclusive of the State's participation in the Program and the 
pilot program with FHWA. Therefore, this proposed renewal MOU will have 
a term of 10 years.
    FRA will consider the comments submitted on the State's application 
and the proposed renewal MOU. A copy of the renewal package and 
proposed renewal MOU may be viewed on the docket (FRA-2024-0039) at 
www.regulations.gov. A copy also may be viewed on the Authority's 
website at: https://hsr.ca.gov/programs/. Any final renewal MOU 
approved by FRA may include changes based on comments and consultations 
relating to the proposed renewal MOU and will be made publicly 
available.
    Authority: 23 U.S.C. 327; 42 U.S.C. 4331, 4332; 23 CFR part 773; 40 
CFR 1507.3; and 49 CFR 264.101.

Marlys Ann Osterhues,
Director, Office of Environmental Program Management, Office of 
Railroad Administration, Federal Railroad Administration.
[FR Doc. 2024-07615 Filed 4-9-24; 8:45 am]
BILLING CODE 4910-06-P