80 FR 46091 - Proposed Memorandum of Understanding Revision (MOU) Assigning Certain Federal Environmental Responsibilities to the State of Alaska, Including National Environmental Policy Act (NEPA) Authority for Certain Categorical Exclusions (CEs)
DEPARTMENT OF TRANSPORTATION
Federal Highway Administration Federal Register Volume 80, Issue 148 (August 3, 2015)
Federal Highway Administration
Federal Register Volume 80, Issue 148 (August 3, 2015)
| Page Range | 46091-46092 | |
| FR Document | 2015-18958 |
[Federal Register Volume 80, Number 148 (Monday, August 3, 2015)] [Notices] [Pages 46091-46092] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2015-18958] ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Federal Highway Administration [Docket No. FHWA-2015-0018] Proposed Memorandum of Understanding Revision (MOU) Assigning Certain Federal Environmental Responsibilities to the State of Alaska, Including National Environmental Policy Act (NEPA) Authority for Certain Categorical Exclusions (CEs) AGENCY: Federal Highway Administration (FHWA). ACTION: Notice of proposed MOU, request for comments. ----------------------------------------------------------------------- SUMMARY: The FHWA and the State of Alaska, acting by and through its Department of Transportation (State), propose a renewal of the State's participation in the 23 U.S.C. 326 program. This program allows FHWA to assign to States its authority and responsibility for determining whether certain designated activities within the geographic boundaries of the State, as specified in the proposed Memorandum of Understanding (MOU), are categorically excluded from preparation of an environmental assessment or an environmental impact statement under the National Environmental Policy Act. An amended MOU would renew the State's participation in the program. The MOU will be amended by incorporating the following changes: Projects that include Federal Aid Highway Program funds and other Federal funds would now be assignable; Federal Lands Highway Program (FLHP) projects funded under 23 U.S.C. 204 and designed and constructed by the State would now be assignable; and projects involving Section 7 Endangered Species Act (ESA) formal consultation would now be assignable. DATES: Comments must be received on or before September 2, 2015. ADDRESSES: You may submit comments, identified by DOT Document Management System (DMS) Docket Number [FHWA-2015-0018], by any of the methods described below. Electronic or facsimile comments are preferred because Federal offices experience intermittent mail delays from security screening. Web site: http://www.regulations.gov. Follow the instructions for submitting comments on the DOT electronic docket site. Facsimile (Fax): 1-202-493-2251. Mail: Docket Management Facility; U.S. Department of Transportation, 1200 New Jersey Ave. SE., Washington, DC 20590. Hand Delivery: 1200 New Jersey Ave. SE., Washington, DC 20590 between 9 a.m. and 5 p.m. e.t., Monday through Friday, except Federal holidays. For access to the docket to view a complete copy of the proposed MOU, or to read background documents or comments received, go to http://www.regulations.gov at any time or to 1200 New Jersey Ave., SE., Washington, DC 20590, between 9 a.m. and 5 p.m. e.t., Monday through Friday, except for Federal holidays. FOR FURTHER INFORMATION CONTACT: For FHWA: Tim Haugh; by email at tim.haugh@dot.gov or by telephone at 907-586-7430. The FHWA Alaska Division Office's normal business hours are 8 a.m. to 4:30 p.m. (Alaska Time), Monday-Friday, except for Federal Holidays. For State: Taylor Horne; by email at taylor.horne@alaska.gov; by telephone at 907-465- 6957. The Alaska Department of Transportation's normal business hours are 8 a.m. to 5 p.m. (Alaska Time), Monday-Friday, except for State and Federal holidays. SUPPLEMENTARY INFORMATION: Electronic Access Internet users may reach the Office of the Federal Register's home page at: http://www.archives.gov/ and the Government Printing Office's database: http://www.fdsys.gov. An electronic version of the proposed MOU may be downloaded by accessing the DOT DMS docket, as described above, at http://www.regulations.gov. Background Section 326 of Title 23 U.S. Code, creates a program that allows the [[Page 46092]] Secretary of the DOT (Secretary), to assign, and a State to assume, responsibility for determining whether certain highway projects are included within classes of action that are categorically excluded (CE) from requirements for environmental assessments or environmental impact statements pursuant to the National Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq. (NEPA). In addition, this program allows the assignment of other environmental review requirements applicable to these actions. The FHWA is authorized to act on behalf of the Secretary with respect to these matters. Through an amended MOU, FHWA would renew Alaska's participation in this program for a second time. The original MOU became effective on September 22, 2009, for an initial term of three (3) years and the first renewal followed on September 20, 2012. The proposed MOU revision is set to supersede the renewed MOU prior to its expiration date on September 20, 2015. Stipulation I(B) of the MOU describes the types of actions for which the State would assume project-level responsibility for determining whether the criteria for a CE are met. Statewide decision-making responsibility would be assigned for all activities within the categories listed in 23 CFR 771.117(c) and those listed as examples in 23 CFR 771.117(d). In addition to the NEPA CE determination responsibilities, the MOU would assign to the State the responsibility for conducting Federal environmental review, consultation, and other related activities for projects that are subject to the MOU with respect to the following Federal laws and Executive Orders: 1. Clean Air Act (CAA), 42 U.S.C. 7401-7671q (determinations of project-level conformity if required for the project). 2. Compliance with the noise regulations in 23 CFR 772. 3. Section 7 of the Endangered Species Act of 1973, 16 U.S.C. 1531- 1544, and Section 1536. 4. Marine Mammal Protection Act, 16 U.S.C. 1361. 5. Anadromous Fish Conservation Act, 16 U.S.C. 757a-757g. 6. Fish and Wildlife Coordination Act, 16 U.S.C. 661-667d. 7. Migratory Bird Treaty Act, 16 U.S.C. 703-712. 8. Magnuson-Stevens Fishery Conservation and Management Act of 1976, as amended, 16 U.S.C. 1801 et seq. 9. Section 106 of the National Historic Preservation Act of 1966, as amended, 54 U.S.C. 306101 et seq. 10. Section 4(f) of the Department of Transportation Act of 1966, 23 U.S.C. 138 and 49 U.S.C. 303; and 23 CFR part 774. 11. Archeological and Historic Preservation Act of 1966, as amended, 54 U.S.C. 3201 12. American Indian Religious Freedom Act, 42 U.S.C. 1996. 13. Farmland Protection Policy Act (FPPA), 7 U.S.C. 4201-4209. 14. Clean Water Act, 33 U.S.C. 1251- 1377 (Section 404, Section 401, Section 319). 15. Coastal Barrier Resources Act, 16 U.S.C. 3501-3510. 16. Coastal Zone Management Act, 16 U.S.C. 1451-1465. 17. Safe Drinking Water Act (SDWA), 42 U.S.C. 300f-300j-6. 18. Rivers and Harbors Act of 1899, 33 U.S.C. 401-406. 19. Wild and Scenic Rivers Act, 16 U.S.C. 1271-1287. 20. Emergency Wetlands Resources Act, 16 U.S.C. 3921-3931. 21. TEA-21 Wetlands Mitigation, 23 U.S.C. 103(b)(6)(m), 133 (b)(11). 22. Flood Disaster Protection Act, 42 U.S.C. 4001-4128. 23. Land and Water Conservation Fund (LWCF), 16 U.S.C. 4601-4604 (known as section 6(f)). 24. Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. 9601-9675. 25. Superfund Amendments and Reauthorization Act of 1986 (SARA). 26. Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6901- 6992k. 27. Landscaping and Scenic Enhancement (Wildflowers), 23 U.S.C. 28. Executive Orders Relating to Highway Projects (E.O. 11990, Protection of Wetlands; E.O. 11988, Floodplain Management; E.O. 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low Income Populations; E.O. 11593, Protection and Enhancement of Cultural Resources; E.O. 13007, Indian Sacred Sites; E.O. 13175, Consultation and Coordination with Indian Tribal Governments; E.O. 13112, Invasive Species). The MOU allows the State to act in the place of the FHWA in carrying out the functions described above, except with respect to government-to-government consultations with federally recognized Indian tribes. The FHWA will retain responsibility for conducting formal government-to-government consultation with federally recognized Indian tribes, which is required under some of the above-listed laws and executive orders. The State also may assist the FHWA with formal consultations, with consent of a tribe, but the FHWA remains responsible for the consultation. This assignment includes transfer to the State of Alaska the obligation to fulfill the assigned environmental responsibilities on any proposed projects meeting the criteria in Stipulation I(B) of the MOU that were determined to be CEs prior to the effective date of the proposed MOU but that have not been completed as of the effective date of the MOU. In addition to proposing a renewal of the State's participation in the program, the proposed MOU would have three changes from the previous version. The MOU will be amended by allowing assignment of projects that include Federal Aid Highway Program funds and other Federal funds. These types of projects were not available for assignment in the previous versions. The MOU would also be amended to allow assignment of Federal Lands Highway Program (FLHP) projects funded under 23 U.S.C. 204 and designed and constructed by ADOT&PF. For example, projects receiving Federal Land Access Program funds would be available for assignment as long as the State is the entity designing and constructing the project. Finally, the MOU would be amended by allowing the State to engage in formal consultation under Section 7 Endangered Species Act (ESA). This responsibility was retained by FHWA in previous versions of the MOU. The FHWA will consider the comments submitted on the proposed MOU when making its decision on whether to execute this renewal MOU. The FHWA will make the final, executed MOU publicly available. (Catalog of Federal Domestic Assistance Program Number 20.205, Highway Planning and Construction. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities apply to this program.) Authority: 23 U.S.C. 326; 42 U.S.C. 4331, 4332; 23 CFR 771.117; 40 CFR 1507.3, 1508.4. Issued on: July 27, 2015. Sandra A. Garcia-Aline, Division Administrator, Juneau, Alaska. [FR Doc. 2015-18958 Filed 7-31-15; 8:45 am] BILLING CODE 4910-22-P
![Federal Register / Vol. 80, No. 148 / Monday, August 3, 2015 / Notices 46091
fuel consumption and carbon dioxide procedures that were supported by other designed and constructed by the State
emissions in the entirety of the airspace existing CATEXs that were would now be assignable; and projects
area under study and believes the same administratively established following involving Section 7 Endangered Species
should be done for noise for statutory public notice and comment and review Act (ESA) formal consultation would
consistency. A total netting of noise by CEQ. The FAA understands that now be assignable.
across all noise exposure levels is not these commenters object to aircraft DATES: Comments must be received on
current FAA policy or practice; noise in their neighborhoods, even or before September 2, 2015.
however, it is FAA’s best interpretation when noise is below significant levels. ADDRESSES: You may submit comments,
of this new legislated CATEX. The FAA As part of NextGen, FAA has a robust identified by DOT Document
continues to give greater importance to research program to reduce aircraft Management System (DMS) Docket
changes at higher noise levels by noise and is currently giving increased Number [FHWA–2015–0018], by any of
precluding the use of this CATEX if attention to improving FAA’s the methods described below. Electronic
increases in noise at DNL 65 dB and community involvement. or facsimile comments are preferred
higher levels would be considered Authority: FAA Modernization and Reform because Federal offices experience
significant. Act of 2012, Sec. 213(c)(2), Pub. L. 112–95, intermittent mail delays from security
Comment: A number of commenters 126 Stat. 11, 49–50. screening.
said that the law should be changed to
Issued in Washington, DC on July 27, 2015. Web site: http://www.regulations.gov.
either revise or eliminate the Section
Lourdes Q. Maurice, Follow the instructions for submitting
213(c)(2) CATEX. Some opined that the
Executive Director, Office of Environment and comments on the DOT electronic docket
law conflicts with NEPA.
FAA Response: In this notice, the Energy, Federal Aviation Administration. site.
FAA is fulfilling its responsibility to [FR Doc. 2015–18823 Filed 7–31–15; 8:45 am]
Facsimile (Fax): 1–202–493–2251.
implement existing law. The FAA does Mail: Docket Management Facility;
BILLING CODE 4910–13–P
not believe that the law conflicts with U.S. Department of Transportation, 1200
NEPA; rather, it legislatively establishes New Jersey Ave. SE., Washington, DC
a new CATEX under NEPA. DEPARTMENT OF TRANSPORTATION 20590.
Comment: Some commenters objected Hand Delivery: 1200 New Jersey Ave.
to the Net Noise Reduction Method on Federal Highway Administration SE., Washington, DC 20590 between 9
the basis that it would not preclude a a.m. and 5 p.m. e.t., Monday through
[Docket No. FHWA–2015–0018] Friday, except Federal holidays.
CATEX if there are significant noise
impacts. Several commenters advocated For access to the docket to view a
Proposed Memorandum of
lowering FAA’s significant noise complete copy of the proposed MOU, or
Understanding Revision (MOU)
threshold from DNL 65 dB to DNL 55 to read background documents or
Assigning Certain Federal
dB. comments received, go to http://
Environmental Responsibilities to the
FAA Response: The NAC’s www.regulations.gov at any time or to
State of Alaska, Including National
recommendation provided for the FAA 1200 New Jersey Ave., SE., Washington,
Environmental Policy Act (NEPA)
to exercise discretion not to use this DC 20590, between 9 a.m. and 5 p.m.
Authority for Certain Categorical
CATEX in certain circumstances, even if e.t., Monday through Friday, except for
Exclusions (CEs)
PBN procedures would result in an Federal holidays.
overall net noise reduction, based on an AGENCY: Federal Highway FOR FURTHER INFORMATION CONTACT: For
additional test for significant impacts. Administration (FHWA). FHWA: Tim Haugh; by email at
The FAA has modified this aspect of the ACTION: Notice of proposed MOU, tim.haugh@dot.gov or by telephone at
NAC’s recommendation. The FAA request for comments. 907–586–7430. The FHWA Alaska
interprets the phrase ‘‘measurable Division Office’s normal business hours
reductions in . . . noise’’ in the SUMMARY: The FHWA and the State of are 8 a.m. to 4:30 p.m. (Alaska Time),
statutory text to be inconsistent with Alaska, acting by and through its Monday–Friday, except for Federal
noise increases that would be Department of Transportation (State), Holidays. For State: Taylor Horne; by
considered significant; therefore, the propose a renewal of the State’s email at taylor.horne@alaska.gov; by
FAA would not use this CATEX if noise participation in the 23 U.S.C. 326 telephone at 907–465–6957. The Alaska
increases would be significant. The program. This program allows FHWA to Department of Transportation’s normal
issue of the FAA’s NEPA threshold of assign to States its authority and business hours are 8 a.m. to 5 p.m.
significance for aircraft noise is entirely responsibility for determining whether (Alaska Time), Monday–Friday, except
separate from the implementation of certain designated activities within the for State and Federal holidays.
this legislated CATEX and is not geographic boundaries of the State, as SUPPLEMENTARY INFORMATION:
addressed in this Federal Register specified in the proposed Memorandum
notice. of Understanding (MOU), are Electronic Access
Comment: Multiple commenters and categorically excluded from preparation Internet users may reach the Office of
the petition signed by 140 people did of an environmental assessment or an the Federal Register’s home page at:
not comment directly on the CATEX or environmental impact statement under http://www.archives.gov/ and the
the Net Noise Reduction Method, but the National Environmental Policy Act. Government Printing Office’s database:
commented generally on adverse effects An amended MOU would renew the http://www.fdsys.gov.
mstockstill on DSK4VPTVN1PROD with NOTICES
of aircraft noise over their homes and State’s participation in the program. The An electronic version of the proposed
requested that the FAA undo MOU will be amended by incorporating MOU may be downloaded by accessing
objectionable flight patterns. Specific the following changes: Projects that the DOT DMS docket, as described
objections to the TNNIS procedure in include Federal Aid Highway Program above, at http://www.regulations.gov.
New York and to the CATEX for this funds and other Federal funds would
procedure were raised. now be assignable; Federal Lands Background
FAA Response: These comments refer Highway Program (FLHP) projects Section 326 of Title 23 U.S. Code,
to the implementation of PBN funded under 23 U.S.C. 204 and creates a program that allows the
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![46092 Federal Register / Vol. 80, No. 148 / Monday, August 3, 2015 / Notices
Secretary of the DOT (Secretary), to 9. Section 106 of the National Historic some of the above-listed laws and
assign, and a State to assume, Preservation Act of 1966, as amended, executive orders. The State also may
responsibility for determining whether 54 U.S.C. 306101 et seq. assist the FHWA with formal
certain highway projects are included 10. Section 4(f) of the Department of consultations, with consent of a tribe,
within classes of action that are Transportation Act of 1966, 23 U.S.C. but the FHWA remains responsible for
categorically excluded (CE) from 138 and 49 U.S.C. 303; and 23 CFR part the consultation. This assignment
requirements for environmental 774. includes transfer to the State of Alaska
assessments or environmental impact 11. Archeological and Historic the obligation to fulfill the assigned
statements pursuant to the National Preservation Act of 1966, as amended, environmental responsibilities on any
Environmental Policy Act of 1969, 42 54 U.S.C. 3201 proposed projects meeting the criteria in
U.S.C. 4321 et seq. (NEPA). In addition, 12. American Indian Religious
Stipulation I(B) of the MOU that were
this program allows the assignment of Freedom Act, 42 U.S.C. 1996.
13. Farmland Protection Policy Act determined to be CEs prior to the
other environmental review
(FPPA), 7 U.S.C. 4201–4209. effective date of the proposed MOU but
requirements applicable to these
14. Clean Water Act, 33 U.S.C. 1251– that have not been completed as of the
actions. The FHWA is authorized to act
on behalf of the Secretary with respect 1377 (Section 404, Section 401, Section effective date of the MOU.
to these matters. 319). In addition to proposing a renewal of
Through an amended MOU, FHWA 15. Coastal Barrier Resources Act, 16 the State’s participation in the program,
would renew Alaska’s participation in U.S.C. 3501–3510. the proposed MOU would have three
this program for a second time. The 16. Coastal Zone Management Act, 16 changes from the previous version. The
original MOU became effective on U.S.C. 1451–1465. MOU will be amended by allowing
September 22, 2009, for an initial term 17. Safe Drinking Water Act (SDWA), assignment of projects that include
of three (3) years and the first renewal 42 U.S.C. 300f–300j–6. Federal Aid Highway Program funds
18. Rivers and Harbors Act of 1899, 33
followed on September 20, 2012. The and other Federal funds. These types of
U.S.C. 401–406.
proposed MOU revision is set to projects were not available for
19. Wild and Scenic Rivers Act, 16
supersede the renewed MOU prior to its assignment in the previous versions.
U.S.C. 1271–1287.
expiration date on September 20, 2015. 20. Emergency Wetlands Resources The MOU would also be amended to
Stipulation I(B) of the MOU describes Act, 16 U.S.C. 3921–3931. allow assignment of Federal Lands
the types of actions for which the State 21. TEA–21 Wetlands Mitigation, 23 Highway Program (FLHP) projects
would assume project-level U.S.C. 103(b)(6)(m), 133 (b)(11). funded under 23 U.S.C. 204 and
responsibility for determining whether 22. Flood Disaster Protection Act, 42 designed and constructed by ADOT&PF.
the criteria for a CE are met. Statewide U.S.C. 4001–4128. For example, projects receiving Federal
decision-making responsibility would 23. Land and Water Conservation Land Access Program funds would be
be assigned for all activities within the Fund (LWCF), 16 U.S.C. 4601–4604 available for assignment as long as the
categories listed in 23 CFR 771.117(c) (known as section 6(f)). State is the entity designing and
and those listed as examples in 23 CFR 24. Comprehensive Environmental constructing the project. Finally, the
771.117(d). Response, Compensation, and Liability MOU would be amended by allowing
In addition to the NEPA CE Act (CERCLA), 42 U.S.C. 9601–9675. the State to engage in formal
determination responsibilities, the MOU 25. Superfund Amendments and consultation under Section 7
would assign to the State the Reauthorization Act of 1986 (SARA).
responsibility for conducting Federal Endangered Species Act (ESA). This
26. Resource Conservation and
environmental review, consultation, and responsibility was retained by FHWA in
Recovery Act (RCRA), 42 U.S.C. 6901–
other related activities for projects that 6992k. previous versions of the MOU.
are subject to the MOU with respect to 27. Landscaping and Scenic The FHWA will consider the
the following Federal laws and Enhancement (Wildflowers), 23 U.S.C. comments submitted on the proposed
Executive Orders: 28. Executive Orders Relating to MOU when making its decision on
1. Clean Air Act (CAA), 42 U.S.C. Highway Projects (E.O. 11990, whether to execute this renewal MOU.
7401–7671q (determinations of project- Protection of Wetlands; E.O. 11988, The FHWA will make the final,
level conformity if required for the Floodplain Management; E.O. 12898, executed MOU publicly available.
project). Federal Actions to Address
(Catalog of Federal Domestic Assistance
2. Compliance with the noise Environmental Justice in Minority
Program Number 20.205, Highway Planning
regulations in 23 CFR 772. Populations and Low Income
and Construction. The regulations
3. Section 7 of the Endangered Populations; E.O. 11593, Protection and
implementing Executive Order 12372
Species Act of 1973, 16 U.S.C. 1531– Enhancement of Cultural Resources;
regarding intergovernmental consultation on
1544, and Section 1536. E.O. 13007, Indian Sacred Sites; E.O. Federal programs and activities apply to this
13175, Consultation and Coordination
4. Marine Mammal Protection Act, 16 program.)
with Indian Tribal Governments; E.O.
U.S.C. 1361.
13112, Invasive Species). Authority: 23 U.S.C. 326; 42 U.S.C. 4331,
5. Anadromous Fish Conservation The MOU allows the State to act in 4332; 23 CFR 771.117; 40 CFR 1507.3,
Act, 16 U.S.C. 757a–757g. the place of the FHWA in carrying out 1508.4.
6. Fish and Wildlife Coordination Act,
mstockstill on DSK4VPTVN1PROD with NOTICES
the functions described above, except
16 U.S.C. 661–667d. Issued on: July 27, 2015.
with respect to government-to-
7. Migratory Bird Treaty Act, 16 government consultations with federally Sandra A. Garcia-Aline,
U.S.C. 703–712. recognized Indian tribes. The FHWA Division Administrator, Juneau, Alaska.
8. Magnuson-Stevens Fishery will retain responsibility for conducting [FR Doc. 2015–18958 Filed 7–31–15; 8:45 am]
Conservation and Management Act of formal government-to-government BILLING CODE 4910–22–P
1976, as amended, 16 U.S.C. 1801 et consultation with federally recognized
seq. Indian tribes, which is required under
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Document Created: 2018-02-23 10:51:27
Document Modified: 2018-02-23 10:51:27
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Notices | |
| Action | Notice of proposed MOU, request for comments. | |
| Dates | Comments must be received on or before September 2, 2015. | |
| Contact | For FHWA: Tim Haugh; by email at [email protected] or by telephone at 907-586-7430. The FHWA Alaska Division Office's normal business hours are 8 a.m. to 4:30 p.m. (Alaska Time), Monday-Friday, except for Federal Holidays. For State: Taylor Horne; by email at [email protected]; by telephone at 907-465- 6957. The Alaska Department of Transportation's normal business hours are 8 a.m. to 5 p.m. (Alaska Time), Monday-Friday, except for State and Federal holidays. | |
| FR Citation | 80 FR 46091 |
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