[Federal Register Volume 71, Number 65 (Wednesday, April 5, 2006)]
[Proposed Rules]
[Pages 17040-17047]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-4911]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Part 773

[FHWA Docket No. FHWA-05-22707]
RIN 2125-AF13


Surface Transportation Project Delivery Pilot Program

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Notice of proposed rulemaking (NPRM); request for comments.

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SUMMARY: Section 6005 of the Safe, Accountable, Flexible, Efficient 
Transportation Equity Act: A Legacy for Users (SAFETEA-LU) established 
a pilot program to allow the Secretary to assign and the State to 
assume the Secretary's responsibilities under the National 
Environmental Policy Act (NEPA) for one or more highway projects. The 
Secretary may permit not more than five States (including the States of 
Alaska, California, Ohio, Oklahoma, and Texas) to participate in the 
program. Upon assigning NEPA responsibilities, the Secretary may 
further assign to the State all or part of the Secretary's 
responsibilities for environmental review, consultation or other action 
required under any Federal environmental law pertaining to the review 
of a specific project. In order to be selected for the pilot program a 
State must submit an application to the Secretary. Section 6005 
requires the Secretary to promulgate rules that establish requirements 
relating to information required to be contained in an application by a 
State to participate in the pilot program. This proposed rule is 
intended to provide the application requirements.

DATES: Comments must be received on or before June 5, 2006. Late-filed 
comments will be considered to the extent practicable.

ADDRESSES: Mail or hand deliver comments to the U.S. Department of 
Transportation, Dockets Management Facility, Room PL-401, 400 Seventh 
Street, SW., Washington, DC 20590, or submit electronically at http://dmses.dot.gov/submit, or fax comments to (202) 493-2251.
    Alternatively, comments may be submitted to the Federal eRulemaking 
portal at http://www.regulations.gov. All comments should include the 
docket number that appears in the heading of this document. All 
comments received will be available for examination and copying at the 
above address from 9 a.m. to 5 p.m., e.t., Monday through

[[Page 17041]]

Friday, except Federal holidays. Those desiring notification of receipt 
of comments must include a self-addressed, stamped postcard or you may 
print the acknowledgment page that appears after submitting comments 
electronically. Anyone is able to search the electronic form of all 
comments in any one of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, or labor union). You may review DOT's 
complete Privacy Act Statement in the Federal Register published on 
April 11, 2000 (Volume 65, Number 70, Pages 19477-78) or you may visit 
http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT: Ms. Ruth Rentch, Office of Project 
Development and Environmental Review, HEPE, 202-366-2034 or Mr. Michael 
Harkins, Office of the Chief Counsel, 202-366-4928, Federal Highway 
Administration, 400 Seventh Street, SW., Washington, DC 20590-0001. 
Office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday through 
Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION: 

Electronic Access and Filing

    You may submit or retrieve comments online through the Document 
Management System (DMS) at: http://dmses.dot.gov/submit. Electronic 
submission and retrieval help and guidelines are available under the 
help section of the Web site. Alternatively, internet users may access 
all comments received by the DOT Docket Facility by using the universal 
resource locator (URL) http://dms.dot.gov. It is available 24 hours 
each day, 365 days each year. Please follow the instructions. An 
electronic copy of this document may also be downloaded by accessing 
the Office of the Federal Register's home page at: http://www.archives.gov or the Government Printing Office's Web page at http://www.gpoaccess/gov/nara.

Background

    Section 6005 of the SAFETEA-LU (Pub. L. 109-59, 119 Stat. 1144), 
codified at 23 U.S.C. 327, established a pilot program that allows the 
Secretary to assign up to five States, including Oklahoma, Texas, 
Alaska, California, and Ohio, the responsibilities of the Secretary 
(FHWA) for implementation of the National Environmental Policy Act 
(NEPA) (42 U.S.C. 4321-4347) for one or more highway projects. Upon 
assumption of NEPA responsibilities, a State may also be assigned all 
or part of FHWA's responsibilities for environmental review, 
consultation or other action required under any Federal environmental 
law pertaining to the review or approval of highway projects. Whenever 
a State assumes the Secretary's responsibilities under this program, 
the State becomes solely responsible and solely liable for carrying 
out, in lieu of FHWA, the responsibilities it has assumed, including 
coordination and resolution of issues with Federal environmental 
resource and regulatory agencies and responding to litigation. In order 
to participate in this pilot program, a State transportation department 
(STD) must submit an application. Section 327 of chapter 23, U.S. Code 
requires that rules be promulgated to establish requirements for 
information to be contained in this application. This notice proposes, 
and requests comments on, the regulations concerning the information to 
be contained in an application.
    Under the proposed regulations, an STD would be required to 
identify, in its application, which Federal environmental laws it wants 
to assume under the program. In accordance with 23 U.S.C. 327, the STD 
must assume NEPA responsibilities prior to assuming the 
responsibilities for any other Federal environmental law. A list of the 
other Federal environmental laws for which an STD may request 
assumption of FHWA's responsibilities is provided in Appendix A to the 
proposed regulations. While this list is not intended to be exhaustive, 
the FHWA does not intend to delegate any responsibilities that are not 
inherently environmental, such as Interstate access approvals. Appendix 
A contains those laws that the FHWA has determined to be inherently 
environmental and, thus, may be assumed by an STD under this program. 
With respect to laws that are not included in Appendix A, the FHWA will 
make a determination as to whether they may be assumed upon request by 
an STD in its application. Additionally, although laws dealing with 
government to government consultation with Indian tribes are listed in 
Appendix A, a State may administer these responsibilities only if the 
State has an agreement with the tribe which specifically provides for 
such consultation. The FHWA specifically requests comments on the list 
of laws that may be assumed by an STD under this program.
    Furthermore, the STD would be required to identify the highway 
projects, or classes of highway projects, for which the STD wants to 
assume environmental responsibilities. There is flexibility in the 
range of projects that STDs may request be included under this pilot 
program (for example, one highway project, all highway projects, or all 
highway projects in a particular district of an STD, only categorical 
exclusions (CE) and environmental assessment (EA)/findings of no 
significant impact (FONSI), etc.) as well as the range of environmental 
laws that may be assumed. Also, the proposed rule requires each 
applicant STD to submit a statement of how it proposes to meet the 
requested responsibilities. This will require an assessment by the STD 
of its current staffing and expertise, its organizational structure, 
and environmental procedures. This assessment should also provide 
baseline information with respect to current environmental timeframes 
and the staffing and organizational costs presently incurred by the STD 
to complete a document that complies with both the FHWA's and the 
Council on Environmental Quality's (CEQ) NEPA regulations, as well as 
other related environmental laws. There is also a requirement to 
provide a proposed budget that estimates the additional financial 
resources needed to assume the requested responsibilities and 
identifies the source of funds for the additional expenses.
    A final part of the proposed application would require that the STD 
provide the public notice of its intent to participate in the program 
and solicit comments. Section 327 of title 23, United States Code 
provides that this is to be done by the STD publishing its application 
in accordance with the appropriate public notice law of the State not 
later than 30 days prior to submitting the application to FHWA. 
Comments received from the public must be submitted along with the 
application. Following approval of the application, the STD must enter 
into a written agreement or Memorandum of Understanding (MOU) with the 
FHWA.

General Discussion of the Proposals

Section-by-Section Discussion of the Proposals

Section 773.102 Applicability

    This section provides that these proposed rules apply to any STD 
that submits an application for participation in the program.

Section 773.103 Definitions

    The specific terms that have special significance to an application 
under the pilot program are defined in this section. The FHWA proposes 
to define ``highway projects'' in a flexible manner to encompass a 
variety of scenarios. Specifically, all projects involving the 
construction of a highway, bridge, or tunnel that is eligible for 
assistance

[[Page 17042]]

under title 23, United States Code, are intended to be included in this 
definition. Also, this definition includes anything that may be 
constructed within the right of way, or otherwise in connection with a 
highway, bridge, or tunnel, such as pedestrian and/or bicycle 
facilities or bus accommodations. Certain types of projects funded 
under the STP Transportation Enhancements Program or under the 
Congestion Mitigation and Air Quality Improvement Program (CMAQ) may 
also be considered highway projects if they are included as part of the 
construction of a highway, bridge or tunnel.
    However, this definition specifically excludes certain types of 
projects. Firstly, this definition excludes planned multi-modal 
projects. Since these projects involve the transportation interests of 
agencies other than the FHWA, as well as features that are not unique 
to highways, the FHWA proposes to define ``highway project'' to exclude 
those projects that are intended at project conception to be multi-
modal. A project is a planned multi-modal project if it is identified 
as a multi-modal project through the transportation planning process, 
or by the action of the Congress, a State governor, or State 
legislature. Further, projects funded under chapter 53, title 49, 
United States Code are also excluded from the definition of a highway 
project. The exclusion of projects intended to be multi-modal or funded 
under chapter 53 of title 49, United States Code from the definition of 
a highway project is in no way intended to influence the range of 
reasonable alternatives, including those involving other modes, which 
must be analyzed under NEPA for a highway project. The FHWA 
specifically requests comment on the decision to exclude planned 
multimodal projects from this definition.
    Secondly, the FHWA intends to exclude projects designated as 
priority projects under Executive Order 13274 (September 18, 2002) 
because the environmental review and coordination of these projects 
have national policy implications.
    Thirdly, highway projects that are Federal Lands Highway projects 
are excluded from this pilot program. These are Federal projects and 
they are constructed on Federal land. Unlike Federal-aid highway 
projects, the STD is neither the owner of the project nor the 
government agency charged with responsibility for design and 
construction of the projects.
    Lastly, the FHWA intends to limit the highway projects for which 
Federal environmental responsibilities may be assumed to those where 
the FHWA has not yet released a draft environmental impact statement 
(DEIS). The FHWA is proposing this limitation because it is important 
for this pilot to have a set of projects that can be measured to 
determine the full effect of assigning FHWA's environmental 
responsibilities to the STDs. Selecting a set of projects that have 
already had significant FHWA involvement does not seem to present a 
clear picture of the STDs' success in managing the Federal 
environmental responsibilities it is assuming. Further, it seems that 
this change of authority in the mid-course of project development could 
be a source of frustration to the public and other agencies. However, 
an STD may assume the FHWA responsibilities for re-evaluations, and the 
appropriate environmental review responsibilities that may result from 
such re-evaluation, even if the FHWA made the initial determination. 
The FHWA specifically requests comments with respect to the proposal to 
exclude projects for which the FHWA has released a DEIS.

Section 773.104 Eligibility

    Only an STD of a State is eligible to apply for participation in 
this program. If a State wishes to assume responsibilities for highway 
projects involving localities or other State entities, such as 
independent tolling authorities, then such responsibilities must be 
carried out through the STD. Also, 23 U.S.C. 327 provides that not more 
than five States, including the States of Alaska, California, Ohio, 
Oklahoma, and Texas, may apply. If one or more of the identified States 
does not apply, have their participation terminated, or withdraw from 
the pilot program, another STD may be selected.

Section 773.105 Application Requirements

    This section establishes the proposed application requirements that 
must be met in order to participate in this program.
    Under Sec.  773.105(b)(1) of the application, an STD would be 
required to identify the particular highway projects for which it is 
requesting to assume FHWA's responsibilities under NEPA. This 
identification should indicate the project(s) termini, length and 
estimated cost. The STDs requesting multiple projects or classes of 
projects may wish to utilize an annotated or highlighted version of 
their current State Transportation Improvement Program (STIP) document 
to provide this information. Other methods that provide the needed 
information are also acceptable.
    Under proposed Sec.  773.105(b)(2), the STD would be required to 
submit a list of the responsibilities it wishes to assume under other 
Federal environmental laws. Section 327 of title 23, United States 
Code, indicates that any environmental responsibilities not 
specifically requested and specifically assigned by the Secretary will 
be retained by the FHWA. We would note that FHWA now documents its 
compliance with many of these laws as part of the NEPA process. Thus, 
should a State choose to assume responsibility for only a part of these 
legal requirements, FHWA may have to separately document compliance 
with any requirement for which it remains responsible. In order to 
assist the STDs in dealing with this requirement, the FHWA has 
developed a list of Federal environmental laws that may apply to 
highway projects. The list is not considered all encompassing and STDs 
are encouraged to carefully review their experience to determine if 
there are additional Federal environmental laws that have applied to 
their projects in the past. As indicated above, an STD must assume NEPA 
in order to assume other responsibilities.
    Under proposed Sec.  773.105(b)(3), the STD would be required to 
submit a philosophical/policy statement of the STD's goals and guiding 
principles in making environmental decisions under the program. The STD 
may choose to add, as appropriate, a statement and specification of its 
comparative advantage(s) in making environmental decisions under this 
program.
    Under proposed Sec.  773.105(b)(4), the STDs would be required to 
submit a description of how they propose to implement the new 
responsibilities they are requesting to be assigned under the program. 
This description is extremely important because it forms the basis for 
the discussions of personnel capacity, expertise and financial 
resources that follow in Sec. Sec.  773.105(b)(5) and 773.105(b)(6). 
This description should cover any existing State law which creates a 
NEPA-like process, the STDs own written environmental procedures, an 
assessment of current staff capabilities and a discussion of changes 
that the STD proposes to make or has made in order to assure the FHWA 
that the STD has the necessary staff, procedures and organizational 
structure to carry out the responsibilities being requested. The FHWA 
is particularly interested in a demonstration by the STD that 
appropriate checks and balances are in place to assure unbiased 
decisionmaking and that all applicable

[[Page 17043]]

provisions of Federal environmental laws, regulations, and processes 
have been met prior to concluding the NEPA process.
    Under Sec.  773.105(b)(5) the FHWA proposes that each applicant 
State demonstrate that it has the necessary personnel to assume the 
responsibilities it requests by providing its own assessment of its 
current staffing, expertise, and organizational structure as well as an 
analysis of changes it will need to make (e.g., added staff, more 
training in particular areas, changes in organizational structure which 
may be needed to support additional responsibilities in quality control 
and assurance and insure an unbiased NEPA decisionmaking process). This 
discussion should specifically include how the STD intends to provide 
for legal sufficiency reviews required by 23 CFR 771.125(b) and 
describe how the STD intends to identify and address the types of 
actions listed in 23 CFR 771.125(c)(1).
    Under Sec.  773.105(b)(6) the FHWA proposes that the STD submit a 
proposed budget that shows a detailed estimate of the additional 
funding that is anticipated in order to meet the staffing, training, 
quality assurance and quality control process, and any organizational 
re-structuring that may be needed to assume the duties requested and to 
provide the needed program checks and balances. Since the statute 
requires a verification of financial resources, the FHWA has included a 
requirement that the STD identify the funding sources for additional 
needs and verify that the identified funding is available for the 
listed activities.
    Section 773.105(b)(7) would require a certification from the State 
Attorney General, or other State official legally empowered under State 
laws, that the STD can and will assume the responsibilities of the 
Secretary for the laws and projects requested and will consent to 
exclusive Federal Court jurisdiction with respect to the assumption of 
these responsibilities. Because the STD is assuming the 
responsibilities of the Secretary, this consent to Federal Court 
jurisdiction must be sufficiently broad to include general changes in 
applicable requirements made after the consent to Federal Court 
jurisdiction or be subject to subsequent amendment. Section 
773.105(b)(8) further requires that a certification be made concerning 
whether the State has laws comparable to the Federal Freedom of 
Information Act (5 U.S.C. 552) as well as laws that allow for any 
decision regarding the public availability of a document to be reviewed 
by a court of competent jurisdiction.
    Section 773.105(b)(9) closely parallels the language of the statute 
with respect to public notice and solicitation of comments (23 U.S.C. 
327(b)(3)). The FHWA proposes adding a requirement for STDs to 
summarize the comments received and to note if any changes have been 
made to the application in response to public comments. Although this 
proposed rule only requires the publication of the application, the 
STDs are encouraged to consult with the public, Federal resource 
agencies, and other stakeholders in the development of their 
applications.
    Section 773.105(c) would provide that the application be signed by 
the Governor or the head of the State agency having primary 
jurisdiction over highway matters. This section also requires the STD 
to identify a point of contact for questions regarding the application.

Section 773.106 Application Approval

    Section 773.106 indicates that the next step following approval of 
the STDs application would be the development of a written agreement or 
memorandum of understanding between the STD and the FHWA.

Section 773.107 Application Amendments

    Section 773.107 would provide a process for amending an application 
submitted under this program to allow STD's to request assumption of 
NEPA and environmental responsibilities for additional projects.

Rulemaking Analyses and Notices

    All comments received before the close of business on the comment 
closing date indicated above will be considered and will be available 
for examination in the docket at the above address. Comments received 
after the comment closing date will be filed in the docket and will be 
considered to the extent practicable. In addition to late comments, the 
FHWA will also continue to file relevant information in the docket as 
it becomes available after the comment period closing date, and 
interested persons should continue to examine the docket for new 
material. A final rule may be published at any time after close of the 
comment period.

Executive Order 12866 (Regulatory Planning and Review) and DOT 
Regulatory Policies and Procedures

    The FHWA has determined preliminarily that this action would be a 
significant rulemaking action within the meaning of Executive Order 
12866 and would be significant within the meaning of the U.S. 
Department of Transportation's regulatory policies and procedures. This 
rulemaking proposes application requirements for the Surface 
Transportation Project Delivery Program as mandated in section 6005 of 
the Safe, Accountable, Flexible, Efficient Transportation Act: A Legacy 
for Users (SAFETEA-LU) (Pub. L. 109-59; 119 Stat. 1144; 23 U.S.C. 327).
    This action is considered significant because of the substantial 
public interest in environmental concerns associated with highway 
projects. The program to which this proposed application corresponds 
allows States to assume the Secretary of Transportation's 
responsibilities under the National Environmental Policy Act of 1969, 
and for environmental reviews, consultations, and compliance with other 
Federal environmental laws. This proposed action involves important DOT 
policy in that it allows participating States to assume limited DOT 
responsibilities.
    These proposed changes are not anticipated to adversely affect, in 
a material way, any sector of the economy. This rulemaking sets forth 
application requirements for the Surface Transportation Project 
Delivery Pilot Program, which will result in only minimal costs to 
program applicants. In addition, these proposed changes would not 
create a serious inconsistency with any other agency's action or 
materially alter the budgetary impact of any entitlements, grants, user 
fees, or loan programs. Consequently, a full regulatory evaluation is 
not required.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 
5 U.S.C. 601-612) we have evaluated the effects of this proposed action 
on small entities and have determined that the proposed action would 
not have a significant economic impact on a substantial number of small 
entities.
    The proposed rule addresses application requirements for States 
wishing to participate in the Surface Transportation Project Delivery 
Program. As such, it affects only States and States are not included in 
the definition of small entity set forth in 5 U.S.C. 601. Therefore, 
the Regulatory Flexibility Act does not apply, and the FHWA certifies 
that this action would not have a significant economic impact on a 
substantial number of small entities.

[[Page 17044]]

Unfunded Mandates Reform Act of 1995

    This proposed rule would not impose unfunded mandates as defined by 
the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, March 22, 
1995, 109 Stat. 48). This proposed rule will not result in the 
expenditure by State, local, and tribal governments, in the aggregate, 
or by the private sector, of $100 million or more in any one year (2 
U.S.C. 1532). Further, in compliance with the Unfunded Mandates Reform 
Act of 1995, the FHWA will evaluate any regulatory action that might be 
proposed in subsequent stages of the proceeding to assess the effects 
on State, local, and tribal governments and the private sector. 
Additionally, the definition of ``Federal Mandate'' in the Unfunded 
Mandates Reform Act excludes financial assistance of the type in which 
State, local, or tribal governments have authority to adjust their 
participation in the program in accordance with changes made in the 
program by the Federal Government. The Federal-aid highway program 
permits this type of flexibility.

Executive Order 13132 (Federalism)

    This proposed action has been analyzed in accordance with the 
principles and criteria contained in Executive Order 13132, and the 
FHWA has preliminarily determined that this proposed action would not 
warrant the preparation of a federalism assessment. The FHWA has also 
determined that this proposed action would not preempt any State law or 
State regulation or affect the States' ability to discharge traditional 
State governmental functions.
    Under this pilot program, a selected State may voluntarily assume 
the responsibilities of the Secretary for implementation of the 
National Environmental Policy Act for one or more highway projects. 
Upon a State's voluntary assumption of NEPA responsibilities, a State 
may also choose to be assigned all or part of FHWA's responsibilities 
for environmental review, consultation or other action required under 
any Federal environmental law pertaining to the review or approval of 
highway projects. It is expected that a State will choose to assume 
these Federal agency responsibilities in those cases where the State 
believes that such an action would enable the State to streamline 
highway project development and construction. The assumption of these 
Federal agency responsibilities would not preempt any State law or 
State regulation or affect the States' ability to discharge traditional 
State governmental functions. Any federalism implications arising from 
the States' assumption of Federal agency responsibilities are 
attributable to SAFETEA-LU section 6005. Any change in the relative 
role of the State is consistent with section 2(a) and 3(c) of E.O. 
13132 in that the national government is granting to the States the 
maximum administrative discretion possible.

Executive Order 12372 (Intergovernmental Review)

    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. Accordingly, the 
FHWA solicits comments on this issue.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501), 
Federal agencies must obtain approval from the Office of Management and 
Budget (OMB) for each collection of information they conduct, sponsor, 
or require through regulations. The FHWA has determined that this 
proposal does not contain collection of information requirements for 
the purposes of the PRA. The FHWA does not anticipate receiving 
applications from ten or more States because participation in the 
Surface Transportation Project Delivery Pilot Program has been limited 
to five, expressly named States in 23 U.S.C. 327.

National Environmental Policy Act

    The agency has analyzed this proposed action for the purpose of the 
National Environmental Policy Act of 1969 (42 U.S.C. 4321-4347) and has 
determined that the establishment of the application requirements for 
participation in the Surface Transportation Project Delivery Pilot 
Program, as required by Congress in 23 U.S.C. 327(b)(2) and the 
subsequent delegation of responsibilities, would not have any effect on 
the quality of the environment. Section 327 expressly provides that a 
State's assumption of the Secretary's responsibilities under this 
program shall be ``subject to the same procedural and substantive 
requirements as would apply if that responsibility were carried out by 
the Secretary.'' 23 U.S.C. 327(a)(2)(C). In addition, this State 
assumption of responsibility does not preempt or interfere ``with any 
power, jurisdiction, responsibility, or authority of an agency, other 
than the U.S. Department of Transportation, under applicable law 
(including regulations) with respect to a project.'' 23 U.S.C. 
327(a)(2)(E). Finally, the Secretary is authorized to terminate the 
participation of any State in this program if the Secretary determines 
``that the State is not adequately carrying out the responsibilities 
assigned to the State.'' 23 U.S.C. 327(i)(2)(A).

Executive Order 12630 (Taking of Private Property)

    The FHWA has analyzed this proposed rule under Executive Order 
12630, Governmental Actions and Interface with Constitutionally 
Protected Property Rights. The FHWA does not anticipate that this 
proposed action would affect a taking of private property or otherwise 
have taking implications under Executive Order 12630.

Executive Order 12988 (Civil Justice Reform)

    This action meets applicable standards in sections 3(a) and 3(b)(2) 
of Executive Order 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.

Executive Order 13045 (Protection of Children)

    We have analyzed this rule under Executive Order 13045, Protection 
of Children from Environmental Health Risks and Safety Risks. The FHWA 
certifies that this proposed action would not cause any environmental 
risk to health or safety that might disproportionately affect children.

Executive Order 13175 (Tribal Consultation)

    The FHWA has analyzed this action under Executive Order 13175, 
dated November 6, 2000, and believes that the proposed action would not 
have substantial direct effects on one or more Indian tribes; would not 
impose substantial direct compliance costs on Indian tribal 
governments; and would not preempt tribal laws. The proposed rulemaking 
addresses application requirements for the Surface Transportation 
Project Delivery Program and would not impose any direct compliance 
requirements on Indian tribal governments. Therefore, a tribal summary 
impact statement is not required.

Executive Order 13211 (Energy Effects)

    We have analyzed this action under Executive Order 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use dated May 18, 2001.

[[Page 17045]]

We have determined that it is not a significant energy action under 
that order since it is not likely to have a significant adverse effect 
on the supply, distribution, or use of energy. Therefore, a Statement 
of Energy Effects is not required.

Regulation Identification Number

    A regulation identification number (RIN) is assigned to each 
regulatory action listed in the Unified Agenda of Federal Regulations. 
The Regulatory Information Service Center publishes the Unified Agenda 
in April and October of each year. The RIN contained in the heading of 
this document can be used to cross reference this action with the 
Unified Agenda.

List of Subjects in 23 CFR Part 773

    Environmental protection, Highway project, Highways and roads.

    Issued on: March 30, 2006.
J. Richard Capka,
Acting Federal Highway Administrator.

    In consideration of the foregoing, the FHWA proposes to add a new 
part 773 to title 23, Code of Federal Regulations, to read as follows:

PART 773--SURFACE TRANSPORTATION PROJECT DELIVERY PILOT PROGRAM

Sec.
773.101 Purpose.
773.102 Applicability.
773.103 Definitions.
773.104 Eligibility.
773.105 Application requirements for participation in the program.
773.106 Application approval
773.107 Application amendments
Appendix A to Part 773--FHWA Environmental Responsibilities that may 
be Assigned Under Section 6005

    Authority: 23 U.S.C. 315 and 327.


Sec.  773.101  Purpose.

    The purpose of this part is to establish the requirements, as 
directed by 23 U.S.C. 327(b)(2), relating to the information which must 
be contained in an application by a State to participate in the program 
allowing the Secretary to assign, and a State Transportation Department 
(STD) to assume, responsibilities for compliance with the National 
Environmental Policy Act (42 U.S.C. 4321-4347) and other Federal 
environmental laws pertaining to the review or approval of a highway 
project(s).


Sec.  773.102  Applicability.

    This part applies to any STD eligible under the provisions of 23 
U.S.C. 327 that submits an application for participation in the 
program.


Sec.  773.103  Definitions.

    Unless otherwise specified in this part, the definitions in 23 
U.S.C. 101(a) are applicable to this part. As used in this part:
    Classes of highway projects means either a defined group of highway 
projects or all highway projects to which Federal environmental laws 
apply.
    Federal environmental law means any Federal law under which the 
Secretary of the United States Department of Transportation has 
responsibilities for environmental review, consultation, or other 
action with respect to highway projects. A list of the Federal 
environmental laws for which a STD may assume the responsibilities of 
the Secretary under this pilot program include, but are not limited to, 
the list of laws contained in appendix A to this part. But, under 23 
U.S.C. 327(a)(2)(B), the Secretary's responsibility for conformity 
determinations required under section 176 of the Clean Air Act (42 
U.S.C. 7506) and the responsibility imposed on the Secretary under 23 
U.S.C. 134 and 135 are not included in the program. Also, Federal 
environmental law includes only laws that are inherently environmental 
and does not include responsibilities such as Interstate access 
approvals (23 U.S.C. 111).
    Highway project means any undertaking to construct (including 
initial construction, reconstruction, replacement, rehabilitation, 
restoration, or other improvements) a highway, bridge, or tunnel, or 
any portion thereof, including environmental mitigation activities, 
which is eligible for assistance under title 23 of the United States 
Code. A highway project may include an undertaking that involves a 
series of contracts or phases, such as a corridor, and also may include 
anything that may be constructed in connection with a highway, bridge, 
or tunnel. However, the term highway project does not include any of 
the priority projects designated under Executive Order 13274, does not 
include Federal Lands projects, does not include undertakings that are 
planned as multi-modal, does not include projects that are funded under 
chapter 53 of title 49, United States Code, and does not include those 
undertakings for which a draft environmental impact statement has been 
issued by the FHWA. Nothing in this part is intended to limit the 
consideration of any alternative in conducting an environmental 
analysis under any Federal environmental law, even if the particular 
alternative would provide for a project that is excluded under this 
section.
    Program means the ``Surface Transportation Project Delivery 
Program'' established under 23 U.S.C. 327, which allows up to five STDs 
to assume all or part of the responsibilities for environmental review, 
consultation, or other action required under any Federal environmental 
law pertaining to the review or approval of one or more highway 
projects.


Sec.  773.104  Eligibility.

    (a) Only a STD of a State is eligible to participate in the 
program.
    (b) The program is limited to a maximum five STDs, including the 
STDs of Alaska, California, Ohio, Oklahoma and Texas as the five 
participant States. Should any of these five STDs choose not to apply, 
have its participation terminated, or withdraw from the pilot program, 
another STD may be selected.


Sec.  773.105  Application requirements for participation in the 
program.

    (a) Each STD wishing to participate in the program must submit an 
application to the FHWA.
    (b) Each application submitted to the FHWA must contain the 
following information:
    (1) The highway project(s) or classes of highway projects for which 
the State is requesting to assume FHWA's responsibilities under NEPA;
    (2) The specific responsibilities for the environmental review, 
consultation, or other action required under other Federal 
environmental laws, if any, pertaining to the review or approval of a 
highway project, or classes of highway projects, that the STD wishes to 
assume under this program. The STD must also indicate whether it 
proposes to phase-in the assumption of these responsibilities;
    (3) A philosophical/policy statement of the STD's goals and guiding 
principles in making environmental decisions under the authority the 
STD is seeking under this program, especially with respect to Section 
101 of NEPA (42 U.S.C. 4321-43351);
    (4) For each responsibility requested in paragraphs (b)(1) and 
(b)(2) of this section, the STD shall submit a description in the 
application detailing how it intends to carry out these 
responsibilities. The description shall include:
    (i) An identification of existing environmental and managerial 
expertise possessed by the STD to meet the responsibilities;
    (ii) A summary of State procedures currently in place to guide the 
development of documents, analyses and consultations required to 
fulfill the environmental responsibilities

[[Page 17046]]

requested. The actual procedures should be submitted with the 
application, or if available electronically, the weblink must be 
provided;
    (iii) Any changes that have been or will be made in the management 
of the environmental program to provide the additional staff and 
training necessary for quality control and assurance, appropriate 
levels of analysis, adequate expertise in areas where responsibilities 
have been requested, and expertise in management of the NEPA process;
    (iv) A discussion of how the STD will verify legal sufficiency for 
the environmental document it produces; and
    (v) A discussion of how the STD will identify and address those 
projects that would normally require FHWA headquarters prior 
concurrence of the FEIS under 23 CFR 771(c).
    (5) A verification of the personnel necessary to carry out the 
authority that may be granted under the program. The verification shall 
contain the following information:
    (i) A description of the staff positions that will be dedicated to 
providing the additional functions needed to accept the delegated 
responsibilities;
    (ii) A description of any changes to the STD's organizational 
structure that are deemed necessary to provide for efficient 
administration of the responsibilities assumed; and
    (iii) A discussion of personnel needs that may be met by the STDs 
use of outside consultants, including legal counsel provided by the 
State Attorney General or private counsel;
    (6) A budget that covers additional activities and staffing needs 
identified in (b)(3) and (b)(4) of this section. The budget must 
include:
    (i) The anticipated additional costs of meeting the environmental 
responsibilities for which delegation has been requested;
    (ii) The costs associated with activities including, but not 
limited to, resolution of issues with other Federal agencies, quality 
control/quality assurance of documents and analysis, legal sufficiency 
reviews;
    (iii) The anticipated costs of Federal court litigation;
    (iv) Identification of the funding sources for these additional 
costs; and
    (v) A separate verification that the identified funding is 
available for the listed activities;
    (7) Certification and explanation by State's Attorney General, or 
other State official legally empowered by State law, that the STD can 
and will assume the responsibilities of the Secretary for the Federal 
environmental laws and projects requested and that the STD will consent 
to exclusive Federal Court jurisdiction with respect to the 
responsibilities being assumed. Such consent must be broad enough to 
include future changes in relevant Federal policies and procedures to 
which FHWA would be subject or such consent would be amended to include 
such future changes;
    (8) Certification by the State's Attorney General, or other State 
official legally empowered by State law, that the State has laws that 
are comparable to the Federal Freedom of Information Act (5 U.S.C. 
552), including laws that allow for any decision regarding the public 
availability of a document under those laws to be reviewed by a court 
of competent jurisdiction; and
    (9) Evidence that the required notice and solicitation of public 
comment by the STD relating to participation in the program has taken 
place. Requirements for notice and solicitation of public comments are 
as follows:
    (i) Not later than 30 days prior to submitting its application, a 
State must give notice that the State intends to participate in the 
program and solicit public comment by publishing a current draft of the 
complete application of the State in accordance with the appropriate 
public notice law of the State, and
    (ii) Copies of all comments received shall be submitted with the 
application. The State should summarize the comments received, and note 
changes, if any, that were made in the application in response to 
public comments.
    (c) The application shall be signed by the Governor or the head of 
the State agency having primary jurisdiction over highway matters. The 
application must also identify a point of contact for questions 
regarding the application. Applications may be submitted in electronic 
format.


Sec.  773.106  Application approval.

    If an STD's application is approved, then the STD will be invited 
to enter into a written Memorandum of Understanding (MOU) with the 
FHWA, as provided in 23 U.S.C. 327. None of FHWA's responsibilities 
under NEPA or other environmental laws may be assumed by the STD prior 
to execution of the MOU.


Sec.  773.107  Application amendments.

    (a) After an STD submits its application to the FHWA, but prior to 
the execution of a memorandum of understanding, the STD may amend its 
application at any time to request additional highway projects, classes 
of highway projects, or more environmental responsibilities. However, 
prior to amending any such application, the STD must provide notice and 
solicit public comments with respect to the intended amendments. In 
submitting the amendment to the FHWA, the STD must provide copies of 
all comments received and note the changes, if any, that were made in 
response to the comments.
    (b) A STD may amend its application no earlier than one year after 
a memorandum of understanding has been executed to request additional 
highway projects, classes of highway projects, or more environmental 
responsibilities. In amending its application, the STD must provide 
notice and solicit public comments with respect to the intended 
amendments. In submitting the amendment to the FHWA, the STD must 
provide copies of all comments received and note the changes, if any, 
that were made in response to the comments.

Appendix A to Part 773--FHWA Environmental Responsibilities That May Be 
Assigned Under Section 6005

Federal Procedures

National Environmental Protection Act (NEPA), 42 U.S.C. 4321-43351
FHWA Environmental Regulations at 23 CFR part 771, 772 and 777
CEQ Regulations at 40 CFR 1500-1508
Clean Air Act, 42 U.S.C. 7401-7671(q). Any determinations that do 
not involve conformity

Noise

Compliance with the noise regulations at 23 CFR part 772

Wildlife

Section 7 of the Endangered Species Act of 1973, 16 U.S.C. 1531-
1544, and Section 1536
Marine Mammal Protection Act, 16 U.S.C. 1361
Anadromous Fish Conservation Act, 16 U.S.C. 757(a)-757(g)
Fish and Wildlife Coordination Act, 16 U.S.C. 661-667(d).
Migratory Bird Treaty Act, 16 U.S.C. 703-712
Magnuson-Stevenson Fishery Conservation and Management Act of 1976, 
as amended, 16 U.S.C. 1801 et seq.

Historic and Cultural Resources

*Section 106 of the National Historic Preservation Act of 1966, as 
amended, 16 U.S.C. 470(f) et seq.
Archeological Resources Protection Act of 1977, 16 U.S.C. 470(aa)-11
Archeological and Historic Preservation Act, 16 U.S.C. 469-469(c)
*Native American Grave Protection and Repatriation Act (NAGPRA), 25 
U.S.C. 3001-3013

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 17047]]

Water Resources and Wetlands

Clean Water Act, 33 U.S.C. 1251-1377
    Section 404
    Section 401
    Section 319
Coastal Barrier Resources Act, 16 U.S.C. 3501-3510
Coastal Zone Management Act, 16 U.S.C. 1451-1465
Land and Water Conservation Fund (LWCF), 16 U.S.C. 4601-4604
Safe Drinking Water Act (SDWA), 42 U.S.C. 300(f)-300(j)(6)
Rivers and Harbors Act of 1899, 33 U.S.C. 401-406
Wild and Scenic Rivers Act, 16 U.S.C. 1271-1287
Emergency Wetlands Resources Act, 16 U.S.C. 3921, 3931
TEA-21 Wetlands Mitigation, 23 U.S.C. 103(b)(6)(m), 133(b)(11)
Flood Disaster Protection Act, 42 U.S.C. 4001-4128

Parklands

Section 4(f) of the Department of Transportation Act of 1966, 49 
U.S.C. 303

Hazardous Materials

Comprehensive Environmental Response, Compensation, and Liability 
Act (CERCLA), 42 U.S.C. 9601-9675
Superfund Amendments and Reauthorization Act of 1986 (SARA)
Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6901-
6992(k)

Land

Landscaping and Scenic Enhancement (Wildflowers), 23 U.S.C. 319

Executive Orders Relating to Highway Projects

    The following is a list of Executive Orders that apply to 
Highway Projects. STDs assuming FHWA's lead agency responsibilities 
under NEPA will be required to comply with these Executive Orders as 
a condition of application approval.

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. 11593 Protection and Enhancement of Cultural Resources
*E.O. 13007 Indian Sacred Sites
E.O. 13287 Preserve America
*E.O. 13175 Consultation and Coordination with Indian Tribal 
Governments
E.O. 11514 Protection and Enhancement of Environmental Quality
E.O. 13112 Invasive Species

    *These laws and Executive Orders involve FHWA's responsibilities 
for government to government tribal consultation. These 
responsibilities may only be administered by the STD if the tribe 
consents to consultation with the STD through a formally signed MOU 
or agreement.

 [FR Doc. E6-4911 Filed 4-4-06; 8:45 am]
BILLING CODE 4910-22-P