[Federal Register Volume 78, Number 169 (Friday, August 30, 2013)]
[Proposed Rules]
[Pages 53712-53725]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-20912]



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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Part 773

Federal Railroad Administration

49 CFR Part 264

Federal Transit Administration

49 CFR Part 622

[Docket No. FHWA-2013-0022]
FHWA RIN 2125-AF50
FRA RIN 2130-AC45
FTA RIN 2132-AB15


Surface Transportation Project Delivery Program Application 
Requirements

AGENCY: Federal Highway Administration (FHWA), Federal Transit 
Administration (FTA), Federal Railroad Administration (FRA), DOT.

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

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SUMMARY: This NPRM provides interested parties with the opportunity to 
comment on proposed regulations that would govern the application 
requirements for the Surface Transportation Project Delivery Program 
(Program). The proposed regulations are prompted by enactment of the 
Moving Ahead for Progress in the 21st Century Act (MAP-21), which 
converted the Surface Transportation Project Delivery Pilot Program 
into a permanent program, allows any State to apply for the Program, 
expanded the scope of the Secretary's responsibilities that may be 
assigned and assumed under the Program, and created a renewal process 
for Program participation. The FHWA, FTA, and FRA, hereinafter referred 
to as the ``Agencies,'' seek comments on the proposals contained in 
this NPRM.

DATES: Comments must be received on or before October 29, 2013.

ADDRESSES: To ensure that you do not duplicate your docket submissions, 
please submit them by only one of the following means:
     Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the online instructions for submitting 
comments.
     Mail: Docket Management Facility, U.S. Department of 
Transportation, 1200 New Jersey Ave., SE., W12-140, Washington, DC 
20590-0001.
     Hand Delivery: West Building Ground Floor, Room W12-140, 
1200 New Jersey Ave., SE., between 9 a.m. and 5 p.m., Monday through 
Friday, except Federal holidays. The telephone number is (202) 366-
9329.
     Instructions: You must include the agency name and docket 
number or the Regulatory Identification Number (RIN) for the rulemaking 
at the beginning of your comments. All comments received will be posted 
without change to http://www.regulations.gov, including any personal 
information provided.

FOR FURTHER INFORMATION CONTACT: For FHWA: Carol Braegelmann, Office of 
Project Delivery and Environmental Review (HEPE), (202) 366-1701, or 
Jomar Maldonado, Office of the Chief Counsel (HCC), (202) 366-1373, 
Federal Highway Administration, 1200 New Jersey Ave., SE., Washington, 
DC 20590-0001. For FTA: Adam Stephenson, Office of Planning and 
Environment (TPE), (202) 366-5183, or Dana Nifosi, Office of Chief 
Counsel (TCC), (202) 366-4011. For FRA: David Valenstein, Office of 
Railroad Policy and Development (RPD), (202) 493-6368, or Zeb Schorr 
Office of Chief Counsel (RCC), (202) 493-6072. Office hours are from 
8:00 a.m. to 4:30 p.m. e.t., Monday through Friday, except Federal 
holidays.

SUPPLEMENTARY INFORMATION:

Background

    Section 6005 of the Safe, Accountable, Flexible, Efficient 
Transportation Equity Act: A Legacy for Users (SAFETEA-LU), 109 Public 
Law 59, 119 Stat. 1144, 1868-1872 (codified at 23 United States Code 
(U.S.C.) 327), established a pilot program allowing the Secretary to 
assign, and for certain States to assume, the Federal responsibilities 
for the review of highway projects under the National Environmental 
Policy Act of 1969 (NEPA) and responsibilities for environmental 
review, consultation or other action required under any Federal 
environmental law pertaining to the review. The pilot program was 
limited to five States and was set to expire on September 30, 2012. 
Pursuant to 23 U.S.C. 327(b)(2), FHWA promulgated regulations in part 
773 of title 23 of the Code of Federal Regulations (CFR) on the 
information that States must submit as part of their applications to 
participate in the pilot program (72 FR 6470 (Feb. 12, 2007)).
    On July 6, 2012, President Obama signed into law the Moving Ahead 
for Progress in the 21st Century Act (MAP-21), Public Law 112-141, 126 
Stat. 405, which contains new requirements that the Secretary of 
Transportation (Secretary) must meet in complying with various 
environmental requirements. Section 1313 amended 23 U.S.C. 327, by: (1) 
Converting the pilot program into a permanent program (Program); (2) 
removing the five-State limit; (3) expanding the scope of assignment 
and assumption for the Secretary's responsibilities to include 
railroad, public transportation, and multimodal projects; and (4) 
allowing a renewal option for program participation. Section 1313 also 
amended 23 U.S.C. 327(b)(2) by requiring the Secretary to amend--within 
270 days from the date of MAP-21's enactment (October 1, 2012)--the 
regulations concerning the information required in a State's 
application to participate in the Program. The Agencies are initiating 
this rulemaking to address that requirement.

General Discussion of the Proposals

    This NPRM proposes to revise part 773 in title 23 to account for 
changes to the Program application process as a result of MAP-21. The 
NPRM also proposes to to create a new part 264 in title 49 to cross-
reference the Program application procedures for the benefit of FRA 
applicants. Finally, the NPRM proposes to add a reference to 23 U.S.C. 
327 and the Program application procedures in 49 CFR part 622, subpart 
A--Environmental Procedures for the benefit of FTA applicants. The NPRM 
is limited to the application process and the information the Agencies 
require from any eligible State interested in applying to the Program. 
Specifically, the proposal provides for applicant eligibility criteria, 
projects and responsibilities that are eligible or ineligible for 
assignment, pre-application procedures, content and submittal 
procedures for the application, review and approval procedures, and 
procedures for the renewal of participation in the Program. In 
addition, the proposal provides a provision on the authority for 
termination of Program participation. The application requirements 
would apply to eligible States interested in applying for the 
Secretary's responsibilities under NEPA and other Federal environmental 
laws with respect to certain highway, railroad, public transportation, 
and multimodal projects. As part of this NPRM, the Agencies are seeking 
input on options for implementing MAP-21's direction to provide for 
assignment and assumption of environmental review responsibilities with 
respect to multimodal projects.
    Under the Program, an eligible State may apply for the assignment 
and assumption of the Secretary's responsibilities under NEPA for 
eligible surface transportation projects. The Secretary's 
responsibilities under NEPA

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include making categorical exclusion determinations, developing and 
issuing environmental assessments (EA), issuing Findings of No 
Significant Impacts (FONSI), and engaging in the environmental impact 
statement (EIS) process, including, but not limited to, developing and 
issuing draft, final, and supplemental EISs, issuing Records of 
Decision, and engaging in re-evaluations. States also may request the 
assignment and assumption of the Secretary's responsibilities for 
environmental reviews, consultations, or other actions required by 
other Federal environmental requirements pertaining to the review of 
the eligible surface transportation projects. Examples of such other 
Federal environmental requirements include evaluations, determinations, 
and consultations under section 106 of the National Historic 
Preservation Act (NHPA), section 7 of the Endangered Species Act, and 
23 U.S.C. 138 and 49 U.S.C. 303 (section 4(f)). The Secretary has 
delegated NEPA and other Federal environmental review responsibilities 
pertaining to the review and approval of highway, railroad, and public 
transportation projects, as well as the administration and 
implementation of this Program to the Agencies pursuant to 49 CFR 1.81.
    Although a State may submit simultaneous applications, obtaining 
assignment for the Secretary's environmental review responsibilities 
for highway projects is a precondition for obtaining assignment of 
environmental review responsibilities for non-highway projects (i.e., 
railroad, public transportation, and multimodal projects). Termination 
of assignment and assumption for responsibilities with respect to 
highway projects also would terminate assignment and assumption for 
responsibilities with respect to non-highway projects.
    It is important to note that this NPRM is focused on the 
application procedures for eligible States as required in 23 U.S.C. 
327(b)(2). The Agencies have determined that, with the exception of the 
termination provision, regulations on the implementation of the Program 
are not needed at this time. As a result, this NPRM does not address 
other aspects of the Program, such as the auditing and monitoring 
requirements, content of Memoranda of Understanding (MOU), or 
responsibilities associated with litigation. The Agencies anticipate 
developing guidance on these issues in the future.

Section-by-Section Discussion of Changes

    This section provides an overview of the proposed changes to 23 CFR 
part 773 and 49 CFR part 622, and proposed new part 264 in 49 CFR. The 
Agencies have relied heavily on FHWA's experience in the development 
and implementation of the current part 773 regulations.

23 CFR Part 773 Title--Surface Transportation Project Delivery Program 
Application Requirements and Termination

    The Agencies propose a title to this part that clearly describes 
the scope of the part. As discussed above, the NPRM does not address 
implementation procedures and requirements, other than a termination 
provision.

Section 773.101--Purpose

    The Agencies propose a section to explain the purpose of the 
Program and to reflect the scope of the Secretary's responsibilities 
eligible for assignment and State assumption. A notable difference from 
the current 23 CFR 773.101 is that the proposed section recognizes the 
expanded responsibilities that can be assigned (i.e., railroad, public 
transportation, and multimodal projects).

Section 773.103--Definitions

    The Agencies propose a section similar to current 23 CFR 773.103 to 
provide definitions for specific terms that have special significance 
to an application under this Program. In addition to terms that were 
originally defined in section 773.103, the Agencies' proposal would add 
definitions for MOU, multimodal project, NEPA, Operating 
Administration, public transportation project, and railroad project.
    The Agencies propose to define the term ``classes of projects'' as 
``either a defined group of projects or all projects to which Federal 
environmental laws apply.'' The proposal is different from the 
definition of ``classes of highway projects'' in the current 23 CFR 
773.103 because it eliminates the ``highway'' modifier. Under the 
Program, a State may request assignment for particular projects and 
identify them in the application. However, a State also may describe a 
class of projects instead of or in addition to specific projects. For 
example, a State requesting and obtaining assignment of ``all highway 
projects located outside the Interstate System'' would be responsible 
for the environmental review of any future highway project fitting the 
class for the duration of the term of the agreement. The Agencies also 
may make assignment decisions based on classes of projects. For 
example, an Agency may decide to retain responsibility for a particular 
class of projects (e.g., multimodal projects where the State has not 
received assignment from the other Agencies, projects within or 
crossing Federal lands, projects within or crossing Tribal lands).
    The proposed definition of ``Federal environmental law'' is similar 
to the current definition in 23 CFR 773.103. This definition includes 
Executive Orders, which were added to the final rule definition of 
``Federal environmental law'' in 23 CFR 773.103 (72 FR at 6465). In 
adding Executive Orders to the current definition in Sec.  773.103, 
FHWA noted that the purpose of Executive Orders was to improve the 
internal management and administration of the Executive Branch of the 
Federal Government and did not create any legally enforceable rights. 
In adopting this definition, the Agencies reiterate this point and note 
that nothing in this rulemaking process is intended to change the legal 
force and effect of any Federal statute, regulation, or Executive Order 
cited herein. Notable differences between the proposed definition and 
the current definition in Sec.  773.103 are the explicit inclusion of 
the terms ``railroad,'' ``public transportation'' and ``multimodal 
projects''; deletion of specific references to non-assignability of 
Clean Air Act (CAA) conformity determinations and the Secretary's 
transportation planning responsibilities; and deletion of a provision 
explaining that only those laws that are inherently environmental are 
assignable. The Agencies propose to move the notification of 
restrictions (i.e., CAA conformity, transportation planning, and 
responsibilities that are not inherently environmental) to the 
eligibility section.
    The Agencies propose to define ``highway projects'' as ``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 authorized 
under title 23 U.S.C. 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. The term highway project does not include 
any project authorized under 23 U.S.C. 202, 203, or 204 unless the 
State will design or construct the project.'' This proposed definition 
is similar to the

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highway definition in the current 23 CFR 773.103 with the notable 
difference that it eliminates limitations in the current definition for 
priority projects under Executive Order 13274, Environmental 
Stewardship and Transportation Infrastructure Project Reviews and 
projects receiving funds through chapter 53 of title 49, U.S.C. The 
Agencies proposed provision in Sec.  773.105(d) would address 
situations where projects should be retained for various reasons, 
including designation of priority project status under Executive Order 
13274. The exclusion of projects funded through chapter 53 of title 49, 
U.S.C., has been eliminated because the MAP-21 revisions now authorize 
the use of the Program for multimodal projects. The Agencies propose to 
retain the exclusion of Federal Lands Highways projects. Instead of 
making a reference to Federal Lands Highways, the Agencies propose to 
reference the provisions authorizing such projects (i.e., 23 U.S.C. 
202, 203, and 204). In some limited cases, a State may design and 
construct a project authorized under these provisions. These would be 
considered highway projects under the definition, and their assignment 
would be subject to the conditions established in the agreement.
    The proposed definition would not include the last sentence in the 
highway project term in the current version of 23 CFR part 773. This 
provision was added in the current part 773 rule to address concerns 
expressed by Federal agencies that the exclusion of multimodal projects 
in assignments under the Program would have encouraged participating 
States to limit the consideration of reasonable alternatives (72 FR 
6465). This restriction is no longer needed since the MAP-21 revisions 
now authorize assignment of multimodal projects under the Program. 
States participating in the Program are expected to follow the same 
standards for environmental review as Federal agencies. This includes 
NEPA's requirement for lead agencies to consider, in some 
circumstances, reasonable alternatives that would be outside their 
jurisdiction (40 CFR 1502.14(c)). Participating States would be 
expected to consider alternatives, whenever appropriate and reasonable, 
that meet the purpose and need for the action, but would result in a 
project for which it does not have all assigned environmental review 
responsibilities (e.g., multimodal project).
    The Agencies propose to define ``MOU'' as ``Memorandum of 
Understanding, a written agreement that complies with 23 U.S.C. 
327(b)(4)(C) and (c), and this part.'' Section 327(b)(4)(C) of title 
23, U.S.C., establishes that one of the conditions for selection is 
that the head of the State agency having primary jurisdiction over 
highway matters enters into a written agreement with the Secretary. 
Section 327(c) describes the requirements for the agreements.
    The Agencies propose to define the term ``multimodal project'' for 
this part as a ``project that falls under the jurisdiction by law or 
special expertise of two or more DOT Operating Administrations.'' This 
term is broader than the statutory term of ``multimodal project'' in 23 
U.S.C. 139, which limits ``multimodal projects'' to projects funded in 
whole or in part by either FHWA or FTA. For example, for purposes of 
the Program, a project funded in whole by FRA and that would receive no 
funding from FHWA or FTA but that would fall under the jurisdiction by 
law or special expertise of these Agencies would be considered a 
multimodal project under the proposed definition.
    The Agencies propose to define ``NEPA'' as the ``National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).''
    The Agencies propose to define ``Operating Administration'' as 
``any agency established within the DOT, including the Federal Aviation 
Administration, Federal Highway Administration (FHWA), Federal Motor 
Carrier Safety Administration, Federal Railroad Administration (FRA), 
Federal Transit Administration (FTA), Maritime Administration, National 
Highway Traffic Safety Administration, Office of the Secretary of 
Transportation, Pipeline and Hazardous Materials Safety Administration, 
Research and Innovative Technology Administration, and Saint Lawrence 
Seaway Development Corporation.''
    The Agencies propose to define the ``Program'' as the ```Surface 
Transportation Project Delivery Program' established under 23 U.S.C. 
327.''
    The Agencies propose to define ``public transportation project'' as 
``a capital project or operating assistance for `public 
transportation,' as defined in chapter 53 of title 49, U.S.C.''
    The Agencies propose to define ``railroad project'' as ``any 
undertaking eligible for financial assistance from FRA to construct 
(including initial construction, reconstruction, replacement, 
rehabilitation, restoration, or other improvements) a railroad, as that 
term is defined in 49 U.S.C. 20102, including: environmental mitigation 
activities; an undertaking that involves a series of contracts or 
phases, such as a railroad corridor; and anything that may be 
constructed in connection with a railroad. The term railroad project 
does not include any undertaking in which FRA provides financial 
assistance to Amtrak.''
    The Agencies propose to define ``State'' to mean ``any agency under 
the direct jurisdiction of the Governor of any of the 50 States or 
Puerto Rico, or the mayor in the District of Columbia, which is 
responsible for implementing highway, railroad, public transportation, 
or multimodal projects eligible for assignment. State does not include 
agencies of local governments, transit authorities or commissions under 
their own board of directors, or State-owned corporations.''

Section 773.105--Eligibility

    The Agencies propose an eligibility section to describe eligible 
applicants, eligible and ineligible responsibilities for assignment, 
and ineligible projects. Paragraph (a) proposes to establish the 
requirements for an Applicant to be eligible and to retain eligibility 
for Program participation. The proposed use of the phrase ``retain 
eligibility'' is intended to provide notice that any change in the 
State's circumstances or laws that creates a conflict with these 
requirements could result in termination of the State's participation 
in the Program. The conditions for Applicants' eligibility for the 
Secretary's responsibilities with respect to highway projects would be 
described first because highway assignment is a prerequisite for the 
assignment of the Secretary's responsibilities with respect to non-
highway projects (23 U.S.C. 327(a)(2)(B)).
    Under the proposed regulation, the State agency seeking and 
obtaining the assignment must be the State Department of Transportation 
(State DOT) for highway and railroad projects. The State must consent 
to accept the jurisdiction of the Federal courts for compliance, 
discharge, and enforcement of any responsibility of the Secretary that 
the State is seeking (23 U.S.C. 327(c)(3)(B)). State law would dictate 
how a State can achieve this waiver declaration of its sovereign 
immunity under the 11th Amendment of the U.S. Constitution. For 
example, in some States the authority to waive State sovereign immunity 
is reserved for the legislature. In other States, the authority may 
have been delegated to the State's Attorney General. In addition to 
these requirements, the State must have in place laws that authorize 
the State to take actions necessary to carry out the responsibilities 
it is assuming (23 U.S.C. 327(c)(3)(C)(i)); must have laws that are

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comparable to the Federal Freedom of Information Act (5 U.S.C. 552) 
(FOIA), including providing that decisions regarding public 
availability of documents under the State law be reviewable by a court 
of competent jurisdiction (23 U.S.C. 327(c)(3)(C)(ii)); and must have 
the financial resources necessary to carry out the responsibilities 
being assumed (23 U.S.C. 327(c)(3)(D)).
    The proposed regulation would require States to adhere to the same 
conditions for assumption of the Secretary's responsibilities with 
respect to non-highway projects with two exceptions: (1) For public 
transportation projects, the State agency applying for assignment would 
not have to be a State DOT and (2) as noted above, a State would be 
required to obtain and maintain assignment of responsibilities with 
respect to one or more highway projects. This latter exception would 
mean that termination of assignment of responsibilities with respect to 
highway projects for a State would be cause for termination of 
assignment of responsibilities with respect to that State's non-highway 
projects under the proposed regulation.
    Paragraph (b) proposes to establish eligible and ineligible 
responsibilities. A State seeking participation in the Program must 
request and obtain assignment for all NEPA responsibilities for the 
project(s) or classes of projects being sought. This proposed 
regulation would not permit assignment of only select aspects of the 
NEPA responsibilities (e.g., developing and approving only EAs and 
FONSIs). However, in accordance with 23 U.S.C. 327(a)(2)(B)(i), a State 
does not have to seek all environmental review responsibilities. As an 
example, a State may decide to seek all environmental review 
responsibilities with the exception of those associated with section 
106 of the NHPA.
    As established by 23 U.S.C. 327(a)(2)(B)(iv), the list of 
ineligible responsibilities would include conformity determinations 
under section 176(c) of the CAA and the Secretary's responsibilities 
under transportation planning legal requirements (23 U.S.C. 134 and 
135; 49 U.S.C. 5303 and 5304). The list also would include government-
to-government consultation with Tribal governments (see Executive Order 
13175, Consultation and Coordination with Indian Tribal Governments). 
Proposed paragraph (b) would clarify that the Secretary's 
responsibilities that are not related to the environmental review 
process are not eligible for assignment and assumption under this 
Program. For example, in the highway context, approvals of changes to 
Interstate access, issuance of Buy America waivers, and approval of 
Interstate and National Highway System design exceptions are not 
considered to be environmental review responsibilities that can be 
assigned through this Program.
    In addition, proposed paragraph (b)(6) would exclude the assignment 
of the Secretary's environmental review responsibilities for actions of 
DOT Operating Administrations other than FHWA, FRA, and FTA, providing 
notice to potential applicant States that the Secretary's 
responsibilities for other portions of multimodal projects are not 
assignable under the Program. For example, in a situation where a 
highway, railroad, or public transportation project will either receive 
funding or require the approval of another DOT Operating Administration 
not covered by the Program (e.g., Maritime Administration (MARAD) or 
Federal Aviation Administration (FAA)), the State may request and 
receive assignment of the FHWA, FRA, or FTA environmental review 
responsibilities, but would not be able to request or receive 
assignment of the other Operating Administration's environmental review 
responsibilities. The Agencies have determined that this approach is 
consistent with section 1313 of MAP-21. The Agencies have denominated 
the proposal as option 1. The Agencies specifically request public 
comment on the feasibility of and interest in this proposal.
    The Agencies evaluated other approaches for implementing the 
statute's direction to provide for assignment of environmental review 
responsibilities with respect to multimodal projects. Under option 2 
the rule would have allowed assignment of environmental review 
responsibilities for elements of a multimodal project not explicitly 
listed in the statute (e.g., airports, motor carrier safety, port, and 
pipeline/hazardous materials safety). Option 2 would have allowed the 
assignment of environmental review responsibilities even when the 
largest element of the project is an element that was not specifically 
listed in the law. For example, under this reading a project that is in 
its majority an airport project, but that has a minor public 
transportation element, would be assignable under the Program as a 
multimodal project. The Agencies considered various factors in pursuing 
option 1 rather than option 2. The broader interpretation in option 2 
could create administrative difficulties in its implementation. For 
example, Operating Administrations other than FHWA, FRA, and FTA would 
need to become familiar with, participate, and budget for the auditing 
and monitoring process. Furthermore, it is more common for MARAD and 
FAA projects to involve third-party sponsoring entities other than a 
State (e.g., port and airport authorities) that are ineligible for 
assignment and who may want DOT to retain its responsibilities. In 
addition, neither the MAP-21 nor its legislative history provide clear 
direction that the provision should be implemented in its broadest 
sense. Therefore, the Agencies did not believe that option 2 was 
reasonable or consistent with this provision. See U.S. Telecom Ass'n v. 
F.C.C., 359 F. 3d 554, 566 (D.C. Cir. 2004) (holding that Federal 
agencies may not subdelegate to outside entities--private or 
sovereign--absent affirmative evidence of authority to do so).
    Despite issues described in the previous paragraph, if the Agencies 
were to pursue option 2, the Agencies envision that the application 
process would proceed in the following manner: (1) A State would 
request the responsibilities for multimodal projects through the Office 
of the Secretary of Transportation (OST); (2) OST would send the 
request to all affected DOT Operating Administrations for their 
coordination, review, and approval; (3) if approved, the Operating 
Administrations would enter into agreements with the State and would 
share responsibility for the oversight (i.e., audit and monitoring 
requirements) with respect to the assigned environmental review 
responsibilities that would have otherwise been under their 
jurisdiction. Obtaining assignment for the Secretary's environmental 
review responsibilities with respect to highway projects would continue 
to be a precondition of obtaining assignment for the Secretary's 
environmental review responsibilities for non-highway projects. 
However, the Agencies do not consider option 2 reasonable or consistent 
with this provision, as outlined in the previous paragraph. The 
Agencies specifically request public comment on the feasibility of and 
interest in this option.
    Under option 3, the Agencies considered a more limited approach 
than option 1, where the only multimodal projects considered for 
assignment are those made up of highway, railroad, and/or public 
transportation components and where the State successfully obtains 
assignment for all of the Secretary's environmental review 
responsibilities for the project. Under such scenario, a

[[Page 53716]]

State may obtain assignment of a highway-railroad, railroad-public 
transportation, highway-public transportation, or highway-railroad-
public transportation project if the State successfully obtains 
assignment from the Operating Administrations involved. Projects that 
have components of other DOT Operating Administrations would not be 
eligible for assignment. Restricting the assignment to situations where 
the State successfully obtains assignment for all the environmental 
review responsibilities involved (i.e., highway, railroad, and/or 
public transportation) would address complexities that could result 
from having a State acting for the Secretary and a DOT Operating 
Administration working together in a multimodal project. Examples of 
such complexities include the process for handling conflict resolution 
when a State has assumed the Secretary's responsibilities and a DOT 
Operating Administration is the other party involved in the conflict; 
joint legal representation issues when a participating State and 
another DOT Operating Administration are involved; and the potential 
impacts on privileges, such as protections for deliberative materials. 
The Agencies believe that this approach may be overly restrictive. The 
Agencies specifically request public comment on the feasibility of and 
interest in this option.
    Proposed paragraph (c) would describe classes of projects that are 
ineligible for assignment. Ineligible classes of projects would include 
those that cross State boundaries and those that cross or are at 
international boundaries. Federal interest in these types of projects 
would warrant the active participation and involvement of the Agencies 
in the environmental review. Section 1503 of MAP-21 amends 23 U.S.C. 
106 by creating a category of projects--high risk category--for which 
FHWA may not assign its responsibilities under 23 U.S.C. 106 to a State 
(see 23 U.S.C. 106(c)(4)). Paragraph (c) proposes to apply this 
assignment limitation to assignments under the Program.
    Finally, the Agencies are proposing paragraph (d) to reiterate that 
they have discretion to reject assignment of eligible responsibilities 
or projects under the Program. Under the pilot program, FHWA did not 
allow assignment to the State of the responsibility for environmental 
review of projects identified for oversight under Executive Order 
13274. The Agencies have determined that Executive Order 13274 projects 
may not be the only projects that warrant high-level involvement from 
the Agencies. The proposed paragraph (d) would entitle the Agencies to 
reject the assignment for a project under the Program based on unique 
circumstances surrounding the project or group of projects. For 
example, responsibilities for which the Operating Administration could 
exercise this discretion include the Secretary's environmental review 
responsibilities for projects that raise unique issues or precedent-
setting analyses, or for projects that are within or cross Federal or 
Tribal lands.

Section 773.107--Pre-application Requirements

    The Agencies propose this section to discuss pre-application 
requirements. Paragraph (a) proposes a pre-application coordination 
meeting between the appropriate Division, Regional, or Headquarters 
office of the Operating Administration and the State requesting the 
assignment. The purpose of this meeting would be to understand the 
State's interests, to identify the responsibilities that would be the 
subject of the application, and to establish timelines for the 
application process. This coordination would be important for 
clarifying any issues and questions regarding the application process 
and Program implementation. For example, this meeting would be useful 
for addressing issues related to the handling of multimodal projects. 
The meeting could establish the State's interest in assuming 
responsibility for specific multimodal projects or a class of 
multimodal projects, procedures that may be needed for seeking 
assignment of multimodal projects not identified at the time of 
application, and discussion of classes of multimodal projects that may 
be best handled on a case-by-case basis. It may be useful for the State 
and the relevant Operating Administration(s) to discuss possible 
scenarios for the identification of multimodal projects, such as 
situations where a project can be identified as a multimodal project 
early in project planning or at a later stage (e.g., where a project 
that started out as a highway, public transportation, or railroad and 
changes into a multimodal project during alternatives analysis). The 
meeting could also be useful for discussing how the State proposes to 
address environmental review for special classes of projects such as 
those that affect Federal or Tribal lands.
    Paragraph (b) proposes to establish public notification 
responsibilities for States applying for Program participation. The 
proposed language is similar to the statutory language in 23 U.S.C. 
327(b)(2)(C) (requiring States to provide evidence of the notice and 
solicitation and copies of the comments received) and section 327(b)(3) 
(requiring States to provide notification 30 days before the 
application submission and authorizing States to provide notice and 
solicit comments in accordance with the State laws for public 
notification). The Agencies have also included a requirement for the 
State to seek comments from resource agencies--those Federal, State, 
and Tribal agencies that have oversight or interest over protected 
resources in their State. This information would be useful for the 
Agencies' compliance with section 327(b)(5) (requiring the Secretary to 
solicit the views of Federal agencies that would have consultation 
responsibilities for assigned projects).
    The Agencies propose a requirement, under paragraph (b)(1), for 
applicant States seeking the Secretary's responsibilities with respect 
to public transportation, to identify and solicit comments from 
recipients of assistance under chapter 53 of title 49, U.S.C. This 
would assist FTA in identifying recipients of assistance under chapter 
53 of title 49, U.S.C., who would want FTA to maintain the 
responsibilities for a public transportation project pursuant to 
section 327(a)(2)(B)(iii). The FTA would consider this information in 
its final assignment decision.
    The Agencies propose paragraphs (c) and (d) to encourage States to 
identify their respective processes for consenting to Federal court 
jurisdiction and to cure any deficiency with respect to any State 
information disclosure law or regulation that would make it 
inconsistent with FOIA. The process for consenting to Federal court 
jurisdiction may vary from State to State. These paragraphs propose to 
clarify that States must start this process as soon as possible and 
must complete it before submitting the application.

Section 773.109--Application Requirements

    Section 773.109 proposes to include the application requirements. 
The proposal includes application provisions similar to those in 
current regulation 23 CFR 773.106. Notable differences from current 
Sec.  773.106 are the inclusion of application procedures for railroad, 
public transportation, and multimodal project environmental review 
responsibilities; a paragraph encouraging electronic submissions; a 
paragraph discussing the joint application process; and a paragraph 
authorizing the Agencies to seek additional information.
    The proposal defines the application requirements for the FHWA's 
responsibilities with respect to highway

[[Page 53717]]

projects first because obtaining highway assignment is a precondition 
to obtaining responsibilities for non-highway projects. As specified in 
proposed Sec.  773.105(a)(1)(i) the State entity seeking to participate 
in the Program must be the State DOT. Paragraph (a)(1) proposes to 
require the State to set forth in its application the highway projects 
or classes of highway projects for which it is seeking to obtain the 
Secretary's NEPA responsibilities. Proposed paragraph (a)(2) would 
require the State's application to identify which environmental review 
responsibilities, in addition to NEPA, it is seeking to obtain. As 
discussed in this preamble, a State must seek all NEPA 
responsibilities, but may seek either all, some, or none of the 
Secretary's responsibilities with respect to the other Federal 
environmental laws.
    Proposed paragraph (a)(3) would require a State to discuss how it 
intends to carry out the responsibilities. Under the proposal, a State 
would need to provide a summary of that State's procedures currently in 
place to guide the process. A State would need to provide these 
procedures to FHWA either electronically or by submitting a hard copy. 
The proposal also would require a State to discuss any management 
changes it has made or will make to ensure good quality analyses. The 
proposal also would require a State to identify the process it will use 
for identifying projects that deserve higher scrutiny within that 
State. This requirement stems from the FHWA and FTA joint NEPA 
procedures at 23 CFR 771.125(c), which identifies situations where a 
Final EIS must be submitted from the Division or Region to Headquarters 
for approval. Under Sec.  771.125(c), FHWA's Headquarters office would 
need to approve the Final EIS for projects where: (1) Additional 
coordination with other Federal, State, or local government agencies is 
needed; (2) the social, economic, or environmental impacts of the 
action may need to be explored more fully; (3) the impacts of the 
action are unusually great; (4) major issues remain unresolved; or (5) 
the action involves national policy issues. The proposed provision 
would require States to develop an analogous process to ensure that the 
State's Headquarters office approves the Final EIS for particular types 
of projects before they can proceed.
    Proposed paragraph (a)(4) would require a State to describe its 
staff resources and any organizational changes it has made or will make 
to carry out the responsibilities sought. Proposed paragraph (a)(5) 
would require a State to summarize the financial resources available to 
carry out the responsibilities, the resource and staffing needs, and to 
provide a commitment that financial resources will be made available to 
meet these needs. These requirements stem from 23 U.S.C. 327(b)(4)(B) 
and (c)(3)(D).
    Proposed paragraphs (a)(6) through (8) would require a State to 
provide evidence that it has waived its sovereign immunity with respect 
to the Secretary's responsibilities it is seeking to acquire, that it 
has laws comparable to FOIA, and that it has met the notice and 
solicitation of public comment requirements. The evidence sought for 
the sovereign immunity waiver and the FOIA requirement would take the 
form of a certification from the State's Attorney General or other 
State official legally empowered by State law to make such 
certification. This certification requirement stems from 23 U.S.C. 
327(c)(3)(C).
    Under proposed paragraph (a)(9), the Agencies would require a State 
to provide a point of contact for questions regarding the application 
and a point of contact for questions regarding the implementation of 
the Program in that State. These two points of contacts may be the same 
individual.
    The Agencies propose paragraph (a)(10) to require a Governor, or 
the Mayor in the District of Columbia, to sign the application as 
acknowledgment of the commitment to provide resources for the 
implementation of the Program and the consent to exclusive Federal 
court jurisdiction for cases arising from the implementation of the 
Program in the State.
    Proposed paragraph (b) would establish that the same information 
requirements apply for requests of the Secretary's environmental review 
responsibilities with respect to public transportation projects, but 
the discussion focuses on public transportation projects. In addition, 
the paragraph would require evidence that a State has either obtained 
assignment for the Secretary's environmental review responsibilities 
with respect to highway projects or has requested the assignment 
concurrently with the public transportation request. The Agencies 
propose a requirement for a State to provide evidence that it has 
notified recipients of assistance under chapter 53 of title 49, U.S.C., 
of the application (see 23 U.S.C. 327(a)(2)(B)(iii)).
    Proposed paragraph (c) would establish that the same information 
requirements applicable to the request for the Secretary's 
environmental review responsibilities for highway projects would apply 
to the request for the Secretary's environmental review 
responsibilities for railroad projects. In addition, the paragraph 
would require evidence that a State has either obtained assignment for 
the Secretary's environmental review responsibilities with respect to 
highway projects or has requested the assignment concurrently with the 
railroad project request.
    Proposed paragraph (d) would cover the application requirements for 
the Secretary's environmental review responsibilities with respect to 
multimodal projects. A State may seek assignment of the Secretary's 
environmental review responsibilities for the highway, railroad, and/or 
public transportation components of the multimodal project. As 
discussed above in this preamble, the Secretary's environmental review 
responsibilities with respect to actions of other Operating 
Administrations are not eligible for assignment. Under this proposal, a 
State would obtain the assignment for the component of the multimodal 
project that is eligible for assignment (i.e., highway, railroad, or 
public transportation) and would need to work with the Operating 
Administration(s) with jurisdiction by law or special expertise on the 
project to ensure a coordinated environmental review. This could 
involve the establishment of a special relationship with the DOT entity 
such as a joint lead agency relationship or a lead and cooperating 
agency relationship under NEPA.
    Ideally, the identification of a multimodal project would occur 
early enough to allow for a joint application of the Secretary's 
responsibilities before the environmental review starts. However, in 
some situations the identification of a multimodal project may not 
occur until a later stage in the environmental review stage (e.g., 
identification of alternatives). States are encouraged to submit an 
application as early as possible once the project is determined to be a 
multimodal project. A State must submit an application to each Agency 
for which that State is seeking assignment of environmental review 
responsibilities.
    Proposed paragraph (e) would authorize the electronic submittal of 
applications. Proposed paragraph (f) would authorize the joint 
submittal of applications. The Agencies believe that this provision 
would be particularly useful when a State is interested in seeking 
assignment for groups or classes of projects and multiple modal 
responsibilities (e.g., highway and public transportation NEPA 
responsibilities). Proposed paragraph (g) reminds States and the public 
that the

[[Page 53718]]

Agencies are authorized to seek more information to cure any 
deficiencies in a submitted Program application.

Section 773.111--Application Review and Approval

    Proposed Sec.  773.111 would establish the review and approval 
process. Proposed paragraph (a) would require the Operating 
Administration to solicit public comments and consider these comments 
in its evaluation of the State's application. Information made 
available to the public for its review may include materials such as 
the State's original application and any amendments to the application, 
and any additional supporting material that is not included in the 
State's application. The materials for public review also may include a 
list of responsibilities sought by the State that the Operating 
Administration proposes to retain. This information would be useful for 
the public and commenting agencies to understand the limits of the 
proposed assignment. The paragraph would allow the use of joint notices 
for those situations where the State seeks the environmental review 
responsibilities of more than one of the Agencies for a project or a 
class of projects.
    Proposed paragraph (b) would establish that upon approving the 
application, the Operating Administration will invite the State to 
enter into an agreement in accordance with 23 U.S.C. 327(b)(4)(C) and 
(c). Proposed paragraph (c) would establish that the assignment would 
not be effective until an MOU is executed. Proposed paragraph (d) would 
establish that the MOUs may be renewed for a term not longer than 5 
years in accordance with 23 U.S.C. 327(c)(5). Proposed paragraph (e) 
indicates that an MOU would be made available for public inspection.

Section 773.113--Application Amendments

    Proposed Sec.  773.113 is similar to the current regulation at 23 
CFR 773.108. Proposed paragraph (a) would establish that the State may 
amend its application after submission of the application but prior to 
the execution of a MOU. These amendments may request additions to or 
eliminate requests for responsibilities. An amendment request is 
subject to the same notification and solicitation of comments 
procedures as an application. This includes a requirement for the State 
to submit the comments received and to note changes made to the request 
based on the comments received. It also includes the applicable 
Operating Administration's solicitation of comments on any amendments 
prior to the decision on an application. This is meant to be consistent 
with the requirement in Sec.  773.111(a) for an original application.
    Proposed paragraph (b) would establish that a State may amend its 
original application after 1 year of the executed MOU. The amendment 
request is subject to the same notification and solicitation of 
comments procedures as the application. This includes a requirement for 
the State to submit the comments received and to note changes made to 
the request based on the comments received. It also includes the 
Operating Administration's solicitation of comments on the proposed 
changes prior to the decision on the application.

Section 773.115--Renewals

    Proposed Sec.  773.115 would describe the conditions of renewal for 
Program participation. The proposed section would include requirements 
for notification to DOT, solicitation of public comments, and 
information needed for the Agencies' consideration.
    Proposed paragraph (a) would require the participating State to 
notify the appropriate Operating Administration of its intent to renew 
no later than 1 year before the expiration of the MOU. The intent of 
this provision is to have a venue similar to the pre-application 
meeting to identify any issues and to go through the process 
requirements.
    The Agencies propose a process similar to the original application 
review and approval process for the renewal. The proposal would require 
the submission of renewal application no later than 6 months before a 
MOU's expiration date. An application would need to capture any 
relevant changed circumstances that have taken place since the original 
application. The proposal would require a public participation process 
for any renewal that would inform the State and the Operating 
Administration of any modifications that may be needed in a State's 
implementation of the assigned responsibilities. The proposal would 
require the Operating Administration(s) to solicit comments on the 
request and make documents under its consideration available for public 
review. This may include an original application, a renewal 
application, audit and monitoring reports, and a list of 
responsibilities the relevant Operating Administration proposes to 
retain. The relevant Operating Administration must consider comments it 
receives, in addition to the record before it, in making a 
determination to renew.
    Paragraph (g) proposes to permit a continuance of a State's 
participation in the Program after the expiration of its MOU in 
exceptional situations. Specifically, such a continuance would be 
intended to address situations where administrative delays or 
emergencies would not allow the timely execution of a renewal MOU. This 
provision would be an extraordinary measure that would be used when the 
only remaining step for Program continuation is the execution of 
signature or completion of administrative protocols. The Operating 
Administration would have the discretion of exercising this 
extraordinary measure.

Section 773.117--Termination

    The Agencies are proposing to include Sec.  773.117 to address 
termination of the assignment of portions or all Federal environmental 
review responsibilities. The Agencies believe that it is difficult to 
predict all circumstances where it might be necessary to terminate the 
assignment for portions or all of the environmental review 
responsibilities. Therefore, the proposed regulation does not specify 
criteria for termination.

Appendix A To Part 773--Example List of the Secretary's Environmental 
Review Responsibilities That May Be Assigned Under 23 U.S.C. 327

    The Agencies propose Appendix A as a list of example Federal 
environmental review responsibilities that may be assigned under the 
Program. A similar list exists in the current Appendix A of part 773. 
Additional responsibilities have been added related to FRA 
responsibilities to recognize the broadened scope of the Program.

49 CFR Part 264--Surface Transportation Project Delivery Program 
Application Requirements and Termination

    The Agencies propose to create a new part 264 in 49 CFR to include 
a reference to 23 U.S.C. 327 and the Program application procedures in 
23 CFR part 773. A cross reference would assist those potential FRA 
applicants, State and Federal agencies, and the public.

49 CFR part 622--Environmental Impact and Related Procedures

    The Agencies proposed to revise the authorities in subpart A--
Environmental Procedures, to include a reference to 23 U.S.C. 327 and 
the application procedures in 23 CFR part 773. A cross reference would 
assist those potential FTA applicants, State and Federal agencies, and 
the public.

[[Page 53719]]

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 
Secretary 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. The Agencies may publish a final rule at any time after close 
of the comment period.

Executive Orders 12866 and 13563 (Regulatory Planning and Review) and 
DOT Regulatory Policies and Procedures

    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). The 
Agencies have determined preliminarily that this action would not be a 
significant regulatory action under section 3(f) of Executive Order 
12866 and would not be significant within the meaning of DOT's 
regulatory policies and procedures (44 FR 11032).
    These proposed changes are not anticipated to adversely affect, in 
a material way, any sector of the economy. This proposed rulemaking 
sets forth application requirements for the Program, which will result 
in only minimal costs to program applicants. In addition, these changes 
would not interfere with any action taken or planned by another agency 
and would not 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. Sec. Sec.  601-612), the Agencies have evaluated the effects 
of this proposed rule on small entities and anticipate that this 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 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 Agencies certify that this action would not have 
significant economic impact on a substantial number of small entities.

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, 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 
$148.1 million or more in any one year (2 U.S.C. 1532). Further, in 
compliance with the Unfunded Mandates Reform Act of 1995, the Agencies 
would 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.

Executive Order 13132 (Federalism Assessment)

    Executive Order 13132 requires agencies to assure meaningful and 
timely input by State and local officials in the development of 
regulatory policies that may have a substantial, direct effect on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. This proposed action has been analyzed in 
accordance with the principles and criteria contained in Executive 
Order 13132, and the Agencies have preliminarily determined that this 
proposed action would not warrant the preparation of a federalism 
assessment. The Agencies have also determined that this proposed action 
would not preempt any State law or State regulation or affect any 
States' ability to discharge traditional State governmental functions.
    Under the Program, a State may voluntarily assume the 
responsibilities of the Secretary for implementation of NEPA for one or 
more highway projects, and one or more railroad, public transportation, 
or multimodal projects. Upon a State's voluntary assumption of NEPA 
responsibilities, a State also may assume 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 or approval of highway, public transportation, railroad, or 
multimodal projects. It is expected that a State would choose to assume 
these Federal agency responsibilities in those cases where the State 
believes that such an action would enable the State to streamline 
project development and construction. The assumption of these Federal 
agency responsibilities would not preempt any State law or State 
regulation or affect any States' ability to discharge traditional State 
governmental functions. Any federalism implications arising from the 
States' assumption of Federal agency responsibilities are attributable 
to 23 U.S.C. 327. Any change in the relative role of the State is 
consistent with section 2(a) and 3(c) of Executive Order 13132 because 
the national government is granting to the States the maximum 
administrative discretion possible. We invite State and local 
governments with an interest in this proposed rulemaking to comment on 
the effect that adoption of specific proposals may have on State or 
local governments.

Executive Order 13175 (Tribal Consultation)

    The Agencies have analyzed this action under Executive Order 13175 
and believe that the proposed action would not have substantial direct 
effects on one or more Indian tribes; would not impose substantial 
direct compliance costs on Tribal governments; and would not preempt 
Tribal law. The proposed rulemaking addresses application requirements 
for the Program and would not impose any direct compliance requirements 
on Tribal governments. Therefore, a Tribal summary impact statement is 
not required.

Executive Order 13211 (Energy Effects)

    The Agencies have analyzed this action under Executive Order 13211, 
Actions Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. The Agencies have determined that the proposed 
action is not a significant energy action under that order because it 
is not likely to have a significant adverse effect on the supply, 
distribution, or use of energy. Therefore, a Statement of Energy 
Effects under Executive Order 13211 is not required.

[[Page 53720]]

Executive Order 12372 (Intergovernmental Review)

    The DOT's regulations implementing Executive Order 12372 (49 CFR 
part 17) apply to this proposed rulemaking. Accordingly, the Agencies 
solicit comments on this issue.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et 
seq.), Federal agencies must obtain approval from the Office of 
Management and Budget (OMB) for collections of information they 
conduct, sponsor, or require through regulations. The PRA applies to 
Federal agencies' collections of information imposed on ten or more 
persons. ``Persons'' include a State, territorial, Tribal, or local 
government, or branch thereof, or their political subdivisions. In this 
regulation, the Agencies consider the State to be the applicant/person 
for all types of projects covered by this regulation. A State with 
multiple applications would count as one person for purposes of the 
Agencies' PRA analysis.
    The Agencies have determined that the number of States interested 
in the Program is very small. During FHWA's implementation of the Pilot 
Program in the past 7 years, only one State, California, indicated any 
interest and applied to participate in the Program. The FHWA twice 
surveyed the remaining States for any additional interest in 
participation and received no expressed interest. The Agencies are 
aware of only one additional State that has initiated legislative 
action to facilitate its potential application for this Program.
    Based on this information, the Agencies' anticipate fewer than 10 
States requesting to participate in the Program. The Agencies will 
initiate the clearance process for OMB's approval to collect 
information if they receive applications from nine States. The Agencies 
will contact OMB to initiate that process at that time.

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 12898 (Environmental Justice)

    Executive Order 12898, Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations, and DOT 
Order 5610.2(a) (the DOT Order), 91 FR 27534 (May 10, 2012) (available 
online at www.fhwa.dot.gov/enviornment/environmental_justice/ej_at_dot/order_56102a/index.cfm), require DOT agencies to achieve 
environmental justice (EJ) as part of their mission by identifying and 
addressing, as appropriate, disproportionately high and adverse human 
health or environmental effects, including interrelated social and 
economic effects, of their programs, policies, and activities on 
minority populations and low-income populations in the United States. 
The DOT Order requires DOT agencies to address compliance with 
Executive Order 12898 and the DOT Order in all rulemaking activities. 
In addition, FHWA and FTA have issued additional documents relating to 
administration of Executive Order 12898 and the DOT Order. On June 14, 
2012, FHWA issued an update to its EJ order, FHWA Order 6640.23A, FHWA 
Actions to Address Environmental Justice in Minority Populations and 
Low Income Populations (the FHWA Order) (available online at 
www.fhwa.dot.gov/legsregs/directives/orders/664023a.htm). FTA also 
issued an update to its EJ policy, FTA Policy Guidance for Federal 
Transit Recipients, (the FTA Circular) 77 FR 42077 (July 17, 2012) 
(available online at www.fta.dot.gov/legislation_law/12349_14740.html).
    The Agencies have evaluated this proposed rule under the Executive 
Order, the DOT Order, the FHWA Order, and the FTA Circular. The 
Agencies have determined that the proposed application regulations, if 
finalized, would not cause disproportionately high and adverse human 
health and environmental effects on minority or low income populations. 
States assuming NEPA responsibilities and Executive Order 12898 
responsibilities must comply with the Department's and the appropriate 
Operating Administrations' guidance and policies on environmental 
justice and title VI of the Civil Rights Act of 1964.

Executive Order 13045 (Protection of Children)

    The Agencies have analyzed this action under Executive Order 13045, 
Protection of Children from Environmental Health Risks and Safety 
Risks. The Agencies certify that this proposed action would not concern 
an environmental risk to health or safety that might disproportionately 
affect children.

Executive Order 12630 (Taking of Private Property)

    The Agencies do not anticipate that this proposed action would 
affect a taking of private property or otherwise have taking 
implications under Executive Order 12630, Governmental Actions and 
Interference with Constitutionally Protected Property Rights.

National Environmental Policy Act

    Agencies are required to adopt implementing procedures for NEPA 
that establish specific criteria for, and identification of, three 
classes of actions: Those that normally require preparation of an EIS; 
those that normally require preparation of an EA; and those that are 
categorically excluded from further NEPA review (40 CFR 1507.3(b)). 
This proposed action qualifies for categorical exclusions under 23 CFR 
771.117(c)(20) (promulgation of rules, regulations, and directives) and 
771.117(c)(1) (activities that do not lead directly to construction) 
for FHWA, and 23 CFR 771.118(c)(4) (planning and administrative 
activities which do not involve or lead directly to construction) for 
FTA. In addition, FRA has determined that this proposed action is not a 
major FRA action requiring the preparation of an environmental impact 
statement or environmental assessment under FRA's Procedures for 
Considering Environmental Impacts (64 FR 28545, May 26, 1999 as amended 
by 78 FR 2713, Jan. 14, 2013). The Agencies have evaluated whether the 
proposed action would involve unusual circumstances or extraordinary 
circumstances and have determined that this proposed action would not 
involve such circumstances.
    Under the Program, a selected State may voluntarily assume the 
responsibilities of the Secretary for implementation of NEPA for one or 
more highway projects, and one or more railroad, public transportation, 
or multimodal projects. Upon a State's voluntary assumption of NEPA 
responsibilities, that State also may choose to be assigned 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 or approval of highway, public 
transportation, railroad, or multimodal projects. A State must follow 
the DOT's and the appropriate Agency's regulations, policies, and 
guidance with respect to NEPA and the assumed environmental law 
responsibilities. As a result, the Agencies find that this

[[Page 53721]]

proposed rulemaking would not result in significant impacts on the 
human environment.

Regulation Identification Number

    A 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

23 CFR Part 773

    Environmental protection, Highways and roads.

49 CFR Part 264

    Environmental protection, Railroads.

49 CFR Part 622

    Environmental protection, Grant programs--transportation, Public 
transit, Recreational areas, Reporting and record keeping requirements.

    For the reasons discussed in the preamble, the Agencies propose to 
amend 23 CFR chapter I and 49 CFR chapters II and VI as follows:

Title 23

0
1. Revise part 773 to read as follows:

PART 773--SURFACE TRANSPORTATION PROJECT DELIVERY PROGRAM 
APPLICATION REQUIREMENTS AND TERMINATION

Sec.
773.101 Purpose.
773.103 Definitions.
773.105 Eligibility.
773.107 Pre-application requirements.
773.109 Application requirements.
773.111 Application review and approval.
773.113 Application amendments.
773.115 Renewals.
773.117 Termination
Appendix A to Part 773--Example List of the Secretary's 
Environmental Review Responsibilities That May Be Assigned Under 23 
U.S.C. 327.

    Authority:  23 U.S.C. 315 and 327; 49 CFR 1.81(a)(4)-(6); 49 CFR 
1.85


Sec.  773.101  Purpose.

    The purpose of this part is to establish the requirements for an 
application by a State to participate in the Surface Transportation 
Project Delivery Program (Program). The Program allows, under certain 
circumstances, the Secretary to assign, and a State to assume, the 
responsibilities under, the National Environmental Policy Act of 1969 
(NEPA) and for environmental review, consultation or other action 
required under certain Federal environmental laws with respect to one 
or more highway, railroad, public transportation, or multimodal 
projects within the State.


Sec.  773.103  Definitions.

    Unless otherwise specified in this part, the definitions in 23 
U.S.C. 101(a) and 49 U.S.C., are applicable to this part. As used in 
this part:
    Classes of projects means either a defined group of projects or all 
projects to which Federal environmental laws apply.
    Federal environmental law means any Federal law or Executive Order 
(E.O.) under which the Secretary of the U.S. Department of 
Transportation (DOT) has responsibilities for environmental review, 
consultation, or other action with respect to the review or approval of 
a highway, railroad, public transportation, or multimodal project. A 
list of the Federal environmental laws for which a State may assume the 
responsibilities of the Secretary under this Program include, but are 
not limited to, the list of laws contained in Appendix A to this part.
    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 authorized under title 23 U.S.C. 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. The term highway project 
does not include any project authorized under 23 U.S.C. 202, 203, or 
204 unless the State will design and construct the project.
    MOU means a Memorandum of Understanding, a written agreement that 
complies with 23 U.S.C. 327(b)(4)(C) and (c), and this part.
    Multimodal project means a project that falls under the 
jurisdiction by law or special expertise of two or more DOT Operating 
Administrations.
    NEPA means the National Environmental Policy Act of 1969 (42 U.S.C. 
4321 et seq.).
    Operating Administration means any agency established within the 
DOT, including the Federal Aviation Administration, Federal Highway 
Administration (FHWA), Federal Motor Carrier Safety Administration, 
Federal Railroad Administration (FRA), Federal Transit Administration 
(FTA), Maritime Administration, National Highway Traffic Safety 
Administration, Office of the Secretary of Transportation, Pipeline and 
Hazardous Materials Safety Administration, Research and Innovative 
Technology Administration, and Saint Lawrence Seaway Development 
Corporation.
    Program means the ``Surface Transportation Project Delivery 
Program'' established under 23 U.S.C. 327.
    Public transportation project means a capital project or operating 
assistance for ``public transportation,'' as defined in chapter 53 of 
title 49 U.S.C.
    Railroad project means any undertaking eligible for financial 
assistance from FRA to construct (including initial construction, 
reconstruction, replacement, rehabilitation, restoration, or other 
improvements) a railroad, as that term is defined in 49 U.S.C. 20102, 
including: Environmental mitigation activities; an undertaking that 
involves a series of contracts or phases, such as a railroad corridor; 
and anything that may be constructed in connection with a railroad. The 
term railroad project does not include any undertaking in which FRA 
provides financial assistance to Amtrak.
    State means any agency under the direct jurisdiction of the 
Governor of any of the 50 States or Puerto Rico, or the mayor in the 
District of Columbia, which is responsible for implementing highway, 
public transportation, or railroad projects eligible for assignment. 
State does not include agencies of local governments, transit 
authorities or commissions under their own board of directors, or 
State-owned corporations.


Sec.  773.105  Eligibility.

    (a) Applicants. A State must comply with the following conditions 
to be eligible and to retain eligibility for the Program.
    (1) For highway projects:
    (i) The State must be a State Department of Transportation (State 
DOT) established and maintained in conformity with 23 U.S.C. 302 and 23 
CFR 1.3;
    (ii) The State expressly consents to accept the jurisdiction of the 
Federal courts for compliance, discharge, and enforcement of any 
responsibility of FHWA assumed by the State;
    (iii) The State has laws in effect that authorize the State to take 
the actions necessary to carry out the responsibilities being assumed;
    (iv) The State has laws in effect that are comparable to the 
Freedom of Information Act (FOIA) (5 U.S.C. 552), including laws 
providing that any decision regarding the public availability of a 
document under those

[[Page 53722]]

State laws is reviewable by a court of competent jurisdiction; and
    (v) The State has the financial resources necessary to carry out 
the responsibilities it is assuming.
    (2) For railroad, public transportation, or multimodal projects:
    (i) The State must comply with paragraphs (a)(1)(ii) through (v) of 
this section; and
    (ii) The State must have assumed the responsibilities of the 
Secretary under this part with respect to one or more highway projects.
    (3) For railroad projects, the State must also be the State DOT.
    (b) Responsibilities. Responsibilities eligible for Program 
assignment and State assumption include all NEPA responsibilities and 
all or part of the reviews, consultations, and other actions required 
under other environmental laws, regulations, and E.O.s. Appendix A 
contains an example list of other environmental laws, regulations, and 
E.O.s that may be assigned to and assumed by the State. The following 
responsibilities are ineligible for Program assignment and State 
assumption:
    (1) Conformity determinations required under section 176 of the 
Clean Air Act (42 U.S.C. 7506);
    (2) The Secretary's responsibilities under 23 U.S.C. 134 and 135;
    (3) The Secretary's responsibilities under 49 U.S.C. 5303 and 5304;
    (4) The Secretary's responsibilities for government-to-government 
consultation with Tribes; and
    (5) The Secretary's responsibilities for approvals that are not 
considered to be part of the environmental review of a project, such as 
project approvals, Interstate access approvals, and safety approvals.
    (6) The Secretary's responsibilities under NEPA and for reviews, 
consultations and other actions required under other Federal 
environmental laws for actions of Operating Administrations other than 
FHWA, FRA, and FTA.
    (c) Projects. Environmental reviews ineligible for assignment and 
State assumption under the Program include reviews for the following 
types of projects:
    (1) Projects that cross State boundaries;
    (2) Projects that are at or cross international boundaries; and
    (3) Projects classified as high risk under 23 U.S.C. 106(c)(4).
    (d) Discretion retained. Nothing in this section limits an 
Operating Administration's discretion to withhold approval of 
assignment of eligible responsibilities or projects under this Program.


Sec.  773.107  Pre-application requirements.

    (a) Coordination meeting. The State must request and participate in 
a pre-application coordination meeting with the appropriate Division, 
Regional, or Headquarters office of the applicable Operating 
Administration(s) before soliciting public comments on its application.
    (b) Public comments. The State must give notice of its intention to 
participate in the Program and must solicit public comment by 
publishing the complete application in accordance with the appropriate 
State public notice laws not later than 30 days prior to submitting its 
application to the appropriate Operating Administration(s). If allowed 
under State law, publishing a notice of availability of the application 
rather than the application itself may satisfy the requirements of this 
provision so long as the complete application is made available on the 
internet and reasonably available to the public for inspection. 
Solicitation of public comments must include solicitation of the views 
of other State agencies, Tribal agencies, and Federal agencies that may 
have consultation or approval responsibilities associated with the 
project(s) within State boundaries.
    (1) The State requesting the FTA's responsibilities with respect to 
public transportation projects must identify and solicit public 
comments from potential recipients of assistance under chapter 53 of 
title 49 U.S.C.
    (2) The State must submit copies of all comments received with the 
publication of the respective application(s). The State must summarize 
the comments received and note any actions taken in response to the 
public comments.
    (c) Sovereign immunity waiver. The State must identify and complete 
the process required by State law for consenting and accepting 
exclusive Federal court jurisdiction with respect to compliance, 
discharge, and enforcement of any of the responsibilities being sought.
    (d) Comparable State laws. The State must determine that it has 
laws that are in effect that authorize the State to take actions 
necessary to carry out the responsibilities the State is seeking and 
laws that are comparable to FOIA. The State must ensure that it cures 
any deficiency before submitting its application.


Sec.  773.109  Application requirements.

    (a) Highway project responsibilities. An eligible State DOT may 
submit an application to FHWA to participate in the Program for one or 
more highway projects or classes of highway projects. The application 
must include:
    (1) The highway projects or classes of highway projects for which 
the State is requesting assumption of Federal environmental review 
responsibilities under NEPA. The State must specifically identify in 
its application each highway project for which a draft environmental 
impact statement has been issued and for which a final environmental 
impact statement is pending, prior to the submission of its 
application;
    (2) Each Federal environmental law, review, consultation, or other 
environmental responsibility the State seeks to assume under this 
Program. The State must indicate whether it proposes to phase-in the 
assumption of these responsibilities, i.e. initially assuming only some 
responsibilities with a plan to assume additional responsibilities at 
specific future times;
    (3) For each responsibility requested in paragraphs (a)(1) and (2) 
of this section, the State must describe how it intends to carry out 
these responsibilities. Such description must include:
    (i) A summary of State procedures currently in place to guide the 
development of documents, analyses, and consultations required to 
fulfill the environmental review responsibilities requested. The State 
must submit a copy of the procedures with the application unless these 
are available electronically. The State may submit the procedures 
electronically, either through email or by providing a hyperlink;
    (ii) Any changes that the State has or will make in the management 
of its environmental program to provide the additional staff and 
training necessary for quality control and assurance, appropriate 
levels of analysis, adequate expertise in areas where the State is 
requesting responsibilities, and expertise in management of the NEPA 
process and reviews under other Federal environmental laws;
    (iii) A discussion of how the State will verify legal sufficiency 
for the environmental document it produces; and
    (iv) A discussion of how the State will identify and address those 
projects that would normally require Headquarters prior concurrence of 
the final environmental impact statement under 23 CFR 771.125(c).
    (4) A verification of the personnel necessary to carry out the 
authority that may be granted under the Program. The verification must 
contain the following information:
    (i) A description of the staff positions, including management, 
that will be dedicated to fulfilling the additional

[[Page 53723]]

functions needed to accept the assigned responsibilities;
    (ii) A description of any changes to the State's organizational 
structure that would be necessary to provide for efficient 
administration of the responsibilities assumed; and
    (iii) A discussion of personnel needs that may be met by the 
State's use of outside consultants, including legal counsel provided by 
the State Attorney General or private counsel;
    (5) A summary of the anticipated financial resources available to 
meet the activities and staffing needs identified in paragraphs (a)(3) 
and (4) of this section, and a commitment to make adequate financial 
resources available to meet these needs;
    (6) Certification and explanation by the State's Attorney General, 
or other State official legally empowered by State law that the State 
can and will assume the responsibilities of the Secretary for the 
Federal environmental laws and projects requested and that the State 
consents to exclusive Federal court jurisdiction with respect to the 
responsibilities being requested and to be 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;
    (7) 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 FOIA, 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;
    (8) Evidence that the required notice and solicitation of public 
comment by the State relating to participation in the Program has taken 
place and the States response to the comments;
    (9) A point of contact for questions regarding the application and 
a point of contact regarding the implementation of the Program (if 
different); and
    (10) The State Governor's signature approving the application.
    (b) Public transportation project responsibilities. An eligible 
State may submit an application to FTA to participate in the Program 
for one or more public transportation projects or classes of public 
transportation projects. The application must provide the information 
required by paragraphs (a)(1) through (10) of this section, but with 
respect to FTA's program and the public transportation project(s) at 
issue. In addition, the application must include:
    (1) Evidence that FHWA has assigned, or has been requested to 
assign, to the State the responsibilities of FHWA with respect to one 
or more highway projects within the State under NEPA; and
    (2) Evidence that any potential recipients of assistance under 
chapter 53 of title 49 U.S.C., for any public transportation project or 
classes of public transportation projects in the State being sought for 
Program assignment have received written notice of the application with 
adequate time to provide comments on the application.
    (c) Railroad project responsibilities. An eligible State may submit 
an application to FRA to participate in the Program for one or more 
railroad projects or classes of railroad projects. The application must 
provide the information required by paragraphs (a)(1) through (10) of 
this section, but with respect to the railroad project(s) at issue. In 
addition, the application must include evidence that FHWA has assigned, 
or has been requested to assign, to the State the responsibilities of 
FHWA with respect to one or more highway projects within the State 
under NEPA.
    (d) Multimodal project responsibilities. An eligible State may 
submit an application for assignment of the Secretary's Federal 
environmental review responsibilities for a multimodal project, group 
of projects, or classes of projects. A State may seek only the 
Secretary's Federal environmental review responsibilities with respect 
to the highway, railroad, or public transportation components of the 
multimodal project, group of projects, or classes of projects. A State 
should submit the application as early as possible once the project is 
identified as a multimodal project and must provide the information 
required by paragraphs (a)(1) through (10) of this section, but with 
respect to the highway, railroad, or public transportation components 
of the multimodal project(s) at issue. In addition, the application 
must include evidence that FHWA has assigned, or has been requested to 
assign, to the State the responsibilities of FHWA with respect to one 
or more highway projects within the State under NEPA. A State must 
submit the application to each of the applicable Operating 
Administrations from which the State is seeking assignment.
    (e) Electronic submissions. All applications may be submitted 
electronically.
    (f) Joint application. A State may submit joint applications for 
multiple modal responsibilities. A joint application must avoid 
redundancies and duplication of information to the maximum extent 
practicable. The application must distinguish the modal projects or 
classes of projects of interest a State is seeking for assignment. A 
joint application must provide all of the information required by each 
Operating Administration for which a State is seeking assignment. A 
State must submit joint applications to each applicable Operating 
Administration.
    (g) Requests for additional information. The appropriate Operating 
Administration(s) may request that the State provide additional 
information to address any deficiencies in the application or 
clarifications that may be needed prior to determining that the 
application is complete.


Sec.  773.111  Application review and approval.

    (a) The Operating Administration must solicit public comments on 
the pending request and must consider comments received before 
rendering a decision on the State's application. Materials made 
available for this public review may include the State's application, 
any additional supporting materials, and a list of responsibilities 
sought by the State that the Operating Administration proposes to 
retain. The notification may be a joint notification if two or more 
Operating Administrations are involved in the assignment for a project 
or a class of projects.
    (b) If the Operating Administration approves the application of a 
State, then the Operating Administration will invite the State to enter 
into a MOU.
    (c) The State's participation in the Program is effective upon the 
execution of the MOU. The Operating Administration's responsibilities 
under NEPA and any other environmental laws may not be assigned to or 
assumed by the State prior to execution of the MOU with the exception 
of renewal situations under Sec.  773.115(g) of this part.
    (d) The MOU must have a term of not more than 5 years that may be 
renewed pursuant to Sec.  773.115 of this part.
    (e) The MOU and approved application must be published on a DOT Web 
site and made reasonably available to the public for inspection and 
copying.


Sec.  773.113  Application amendments.

    (a) After a State submits its application to the appropriate 
Operating Administration(s), but prior to the execution of the MOU(s), 
the State may amend its application at any time to request additional 
projects, classes of projects, or more environmental review 
responsibilities consistent with the requirements of this part.

[[Page 53724]]

    (1) Prior to requesting any such amendment, the State must provide 
notice and solicit public comments with respect to the intended 
amendments in compliance with Sec.  773.107(b) of this part.
    (2) In submitting the amendment to the appropriate Operating 
Administration(s), the State must provide copies of all comments 
received and note the changes, if any, that were made in response to 
the comments.
    (3) Consistent with Sec.  773.111(a) of this part, the appropriate 
Operating Administration(s) must solicit public comments on the change 
prior to approving the application.
    (b) Upon execution of the MOU(s), a State may amend its application 
to the appropriate Operating Administration(s) no earlier than 1 year 
after the MOU has been executed to request additional projects, classes 
of projects, or more environmental review responsibilities consistent 
with the requirements of this part.
    (1) Prior to requesting any such amendment, the State must provide 
notice and solicit public comments with respect to the intended 
amendments in compliance with Sec.  773.107(b) of this part.
    (2) In submitting the amendment to the appropriate Operating 
Administration(s), the State must provide copies of all comments 
received and note the changes, if any, that were made in response to 
the comments.
    (3) Consistent with Sec.  773.111(a) of this part, the appropriate 
Operating Administration(s) must solicit public comments on the change 
prior to approving the application.


Sec.  773.115  Renewals.

    (a) A State planning to renew a MOU and to maintain the assumption 
of the Operating Administration's responsibilities under NEPA and other 
environmental laws must notify the appropriate Operating 
Administration(s) of its intent to do so at least 12 months before the 
expiration of the MOU.
    (b) A State must submit an application to renew the MOU no later 
than 180 days prior to the expiration of the MOU.
    (c) An application to renew a MOU must:
    (1) Describe any changes to the information submitted to meet Sec.  
773.109(a)(1) through (5) and (a)(9) of this part for the applicable 
Operating Administration(s);
    (2) Provide up-to-date certifications required in Sec.  
773.109(a)(6) through (7) of this part for the applicable Operating 
Administration(s);
    (3) Provide evidence of the public notification requirements in 
paragraph (d) of this section; and
    (4) Provide the State Governor's, or the Mayor's in the District of 
Columbia, signature approving the application to renew the MOU.
    (d) The State must give notice of its intent to renew its 
participation in the Program and must solicit public comment in 
compliance with Sec.  773.107(b) of this part.
    (e) The appropriate Operating Administration(s) may request that 
the State provide additional information to address any deficiencies in 
the renewal application or to provide clarifications.
    (f) The appropriate Operating Administration(s) must solicit public 
comments on the renewal request and must consider comments received 
before approving the State's renewal application. Materials made 
available for this public review may include the State's original 
application, the renewal application, any additional supporting 
materials, a list of responsibilities sought by the State that the 
Operating Administration proposes to retain, and auditing and 
monitoring reports developed as part of the Program. The notification 
may be a joint notification if two or more Operating Administrations 
are involved in the assignment for a project or a class of projects.
    (g) At the discretion of the Operating Administration, a State may 
retain temporarily its assigned and assumed responsibilities under a 
MOU after the expiration of the MOU, where the relevant Operating 
Administration(s) determines that:
    (1) The State made a timely submission of a complete renewal 
application in accordance with the provisions of this section;
    (2) The Operating Administration(s) determines that all reasonable 
efforts have been made to achieve a timely execution of the renewal; 
and
    (3) The Operating Administration(s) determines that it is in the 
best interest of the public to grant the continuance.


Sec.  773.117  Termination.

    Pursuant to 23 U.S.C. 327 and any applicable conditions of the 
Secretary's assignment of responsibilities to the State, either the 
Secretary or the State may terminate the participation of the State in 
the Program.

Appendix A to Part 773--Example List of the Secretary's Environmental 
Review Responsibilities That May Be Assigned Under 23 U.S.C. 327

Federal Procedures

    The NEPA, 42 U.S.C. 4321 et seq.
    Regulations for Implementing the Procedural Provisions of NEPA at 
40 CFR 1500-1508.
    The FHWA/FTA Environmental Regulations at 23 CFR parts 771, 772 and 
777.
    The FRA's Procedures for Considering Environmental Impacts, 64 FR 
28545 (May 26, 1999) and 78 FR 2713 (Jan. 14, 2013).
    Clean Air Act, 42 U.S.C. 7401-7671q. Any determinations that do not 
involve conformity.
Noise
    Noise Control Act of 1972, 42 U.S.C. 4901-4918.
    Airport Noise and Capacity Act of 1990, 49 U.S.C. 4751-47533.
    Compliance with the noise regulations at 23 CFR part 772.
Wildlife
    Endangered Species Act of 1973, 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-757g.
    Fish and Wildlife Coordination Act, 16 U.S.C. 661-667d.
    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. 1801-1884.
Historic and Cultural Resources
    National Historic Preservation Act of 1966, 16 U.S.C. 470 et seq.
    Archaeological Resources Protection Act of 1979, 16 U.S.C. 470aa-
470mm.
    Archeological and Historic Preservation Act, 16 U.S.C. 469-469c.
    Native American Graves Protection and Repatriation Act, 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, 7 U.S.C. 4201-4209.
Water Resources and Wetlands
    Clean Water Act, 33 U.S.C. 1251-1387.

Section 404, 33 U.S.C. 1344
Section 401, 33 U.S.C. 1341
Section 319, 33 U.S.C. 1329

    Coastal Barrier Resources Act, 16 U.S.C. 3501-3510.
    Coastal Zone Management Act, 16 U.S.C. 1451-1466.
    Safe Drinking Water Act, 42 U.S.C. 300f-300j-26.
    Rivers and Harbors Act of 1899, 33 U.S.C. 403.
    Wild and Scenic Rivers Act, 16 U.S.C. 1271-1287.

[[Page 53725]]

    Emergency Wetlands Resources Act, 16 U.S.C. 3921 and 3921.
    Wetlands Mitigation, 23 U.S.C. 119(g) and 133(b)(14).
    Flood Disaster Protection Act, 42 U.S.C. 4001-4128.
Parklands
    Section 4(f), 49 U.S.C. 303; 23 U.S.C. 138.
    Land and Water Conservation Fund, 16 U.S.C. 460l-4-460l-11.
Hazardous Materials
    Comprehensive Environmental Response, Compensation, and Liability 
Act, 42 U.S.C. 9601-9675.
    Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. 
9671-9675.
    Resource Conservation and Recovery Act, 42 U.S.C. 6901-6992k.
Executive Orders Relating to Eligible Projects and DOT Implementing 
These 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

Title 49

0
2. Add 49 CFR part 264 to read as follows:

PART 264--SURFACE TRANSPORTATION PROJECT DELIVERY PROGRAM 
APPLICATION REQUIREMENTS AND TERMINATION

Sec.
264.101 Procedures for complying with the surface transportation 
project delivery program application requirements and termination.

    Authority:  23 U.S.C. 327; 49 CFR 1.81.


Sec.  264.101   Procedures for complying with the surface 
transportation project delivery program application requirements and 
termination.

    The procedures for complying with the surface transportation 
project delivery program application requirements and termination are 
set forth in part 773 of title 23 of the Code of Federal Regulations.

PART 622--ENVIRONMENTAL IMPACT AND RELATED PROCEDURES

0
3. The authority citation for part 622 is revised to read as follows:

    Authority:  42 U.S.C. 4321 et seq.; 49 U.S.C. 303 and 5323(q); 
23 U.S.C. 139, 326, and 327; Pub. L. 109-59, 119 Stat. 1144, 
sections 6002 and 6010; 40 CFR parts 1500-1508; 49 CFR 1.81, 1.85; 
and Pub. L. 112-141, 126 Stat. 405, sections 1313 and 1315.

0
4. Revise Sec.  622.101 to read as follows:
    The procedures for complying with the National Environmental Policy 
Act of 1969, as amended (42 U.S.C. 4321 et seq.), and related statutes, 
regulations, and orders are set forth in part 771 of title 23 of the 
Code of Federal Regulations. The procedures for complying with 49 
U.S.C. 303, commonly known as ``Section 4(f),'' are set forth in part 
774 of title 23 of the Code of Federal Regulations. The procedures for 
complying with the surface transportation project delivery program 
application requirements and termination are set forth in part 773 of 
title 23 of the Code of Federal Regulations.
    This proposed rule is being issued pursuant to authority delegated 
under 49 CFR 1.81.

    Issued on: August 12, 2013.
Victor M. Mendez,
Administrator, Federal Highway Administration.
Peter Rogoff,
Administrator, Federal Transit Administration.
Joseph C. Szabo,
Administrator, Federal Railroad Administration.
[FR Doc. 2013-20912 Filed 8-29-13; 8:45 am]
BILLING CODE 4910-22-P