[Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Notices]
[Pages 73182-73184]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20247]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

[Docket No. FRA-2024-0096]


Application Package From the State of Ohio 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 an 
application package from the State of Ohio (State), Ohio Department of 
Transportation (ODOT) in conjunction with the Ohio Rail Development 
Commission (ORDC), requesting 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 
application package to be complete and developed a draft MOU with the 
State outlining how the State will implement the Program with FRA 
oversight. The public is invited to comment on the State's request, 
including its application package and the proposed MOU, which includes 
the proposed assignments and assumptions of environmental review, 
consultation, and other activities.

DATES: Comments must be received on or before October 9, 2024.

ADDRESSES: Comments related to Docket No. FRA-2024-0096 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-2024-0096). 
Note that all submissions received, including any personal information 
provided, will 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 ODOT, please contact Mr. Timothy Hill, 
Administrator of ODOT's Office of Environmental Services, Ohio 
Department of Transportation, 1980 West Broad Street, Mail Stop 4170, 
Columbus, Ohio 43223, telephone: (614) 644-0377; 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 Ohio initially participated in the Federal Highway 
Administration's (FHWA) Surface Transportation Project Delivery Program 
and in accordance with 23 U.S.C. 327, entered into a Memorandum of 
Understanding (MOU) with the Federal Highway Administration (FHWA) for 
the FHWA NEPA Assignment program in Ohio. The NEPA Assignment MOU 
between the State, acting through ODOT, and FHWA became effective 
December 11, 2015, was amended on June 6, 2018, and renewed on December 
14, 2020. Since being accepted into the FHWA NEPA Assignment program, 
the State has successfully completed four audits, eight self-
assessments, and one monitoring event; a second monitoring event, as 
required under the MOU, is currently underway. FHWA has consistently 
publicly stated that the State continues to meet all requirements of 
the NEPA Assignment program and has held the State up as an example for 
other states to follow. The State will

[[Page 73183]]

have participated in the Program for 9 years on December 11, 2024.
    Pursuant to 23 CFR 773.107(b)(1) and (2): Public comment, the 
State's draft application was publicly noticed on June 2, 2024, for a 
30-day comment period, with comments due by the close of business on 
July 2, 2024. A notice of the draft application's availability was 
published in the newspaper with the largest circulation in the 
following cities: Columbus, Cincinnati, Cleveland, Dayton, and Toledo. 
The State also sent notice of the application by email or letter with 
request for comment to federal and state resource agencies and 
federally recognized tribal governments. Lastly, the State sent notices 
to various associations and other groups and posted the availability of 
the application and how to provide comments on ODOT's website. On July 
24, 2024, the State formally submitted its Application Package to FRA. 
The submission includes verification of statewide notice and 
solicitation of public comment, copies of the State's responses to 
comments and incorporation of comments into the application package, 
Ohio's determination that the State of Ohio Public Records Act is 
comparable to the Federal Freedom of Information Act, draft MOU, and 
the Director of ODOT's signature approving the application.
    Under the proposed MOU, FRA would assign to the State the 
responsibility for making decisions on railroad projects as described 
in the State's application and in Part 3 of the draft MOU. The State is 
requesting to assume FRA's responsibilities under NEPA for the 
following classes of rail projects upon execution of the NEPA 
Assignment Program MOU with FRA. This includes all railroad projects in 
Ohio whose source of federal funding comes from FRA or require FRA 
approvals that are administered by ODOT or ORDC; these projects may 
include funding from other federal sources as well. For these projects, 
the State requests to assume only FRA's NEPA responsibilities; the 
request does not include assuming the NEPA responsibilities of other 
federal agencies
    Lastly, the State would establish appropriate relationships with 
other Operating Administration(s) involved in a multimodal project, 
including cooperating agency, participating agency, and lead or co-lead 
agency relationships under NEPA. In addition, the State may use or 
adopt other federal agencies' NEPA analyses consistent with 40 CFR 
parts 1500-1508 and USDOT and FRA regulations, policies, and guidance. 
ODOT's assumption of these responsibilities program-wide will provide 
for the highest degree of consistency and efficiency in document review 
and agency coordination. It will also provide the greatest opportunity 
for streamlining benefits.
    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 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 under subpart 3.3 of the proposed MOU, remains the 
responsibility of FRA.
    Under the proposed MOU, the State would also assume the 
responsibility to conduct the following environmental review, 
reevaluation, consultation, or other action pertaining to the review or 
approval of railroad projects specified under MOU subpart 3.3 and 
required under the following Federal environmental laws and executive 
orders related to railroad projects:

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, 42 U.S.C 7506

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
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

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. except to the extent 23 CFR 773.105(b)(4) 
requires FRA to retain responsibility for government-to-government 
consultation with Indian Tribes
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 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

Water Resources and Wetlands

Clean Water Act, 33 U.S.C. 1251-1387 (sections 401, 402, 404, 408, and 
section 319)
Coastal Barrier Resources Act, 16 U.S.C. 3501-3510
Coastal Zone Management Act, 16 U.S.C. 1451-1466
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
Rivers and Harbors Act of 1899, 33 U.S.C. 401-406
Safe Drinking Water Act (SDWA), 42 U.S.C. 300f-300j-26
Wetlands Mitigation, 23 U.S.C. 119(g) and 133(b)(14)
Wild and Scenic Rivers Act, 16 U.S.C. 1271-1287

Parklands and Other Special Land Uses

49 U.S.C. 303 (section 4(f)) and implementing regulations at 23 CFR 
part 774
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 (except approving design standards 
and determinations that a significant encroachment is the only 
practicable

[[Page 73184]]

alternative under 23 CFR 650.113 and 650.115.
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
Other Executive Orders not listed, but related to railroad projects
    The proposed MOU would allow the State 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 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 may assist FRA with Government-to-Government consultations, with 
consent of a Tribe, but FRA remains responsible for the consultation.
    In addition, the State 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.
    FRA will consider the comments submitted on the State's application 
and the proposed MOU. A copy of the application package and proposed 
MOU may be viewed on the docket (FRA-2024-0096) at www.regulations.gov. 
A copy also may be viewed on ODOT's website at: https://www.transportation.ohio.gov/programs/nepa-odot/nepa-assignment-documentation. Any final MOU approved by FRA may include changes based 
on comments and consultations relating to the proposed 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 Osterhues,
Director, Office of Environmental Program Management, Office of 
Railroad Administration.
[FR Doc. 2024-20247 Filed 9-6-24; 8:45 am]
BILLING CODE 4910-06-P