1、440 23 CFR Ch. I (4111 Edition) Pt. 773 PART 773SURFACE TRANSPOR-TATION PROJECT DELIVERY PILOT PROGRAM Sec. 773.101 Purpose. 773.102 Applicability. 773.103 Definitions. 773.104 Eligibility. 773.105 Statements of interest. 773.106 Application requirements for par-ticipation in the program. 773.107 Ap
2、plication approval. 773.108 Application amendments. APPENDIX A TO PART 773FHWA ENVIRON-MENTAL RESPONSIBILITIES THAT MAY BE ASSIGNED UNDER SECTION 6005. AUTHORITY: 23 U.S.C. 315 and 327; 49 CFR 1.48. SOURCE: 72 FR 6470, Feb. 12, 2007, unless otherwise noted. 773.101 Purpose. The purpose of this part
3、is to estab-lish the requirements, as directed by 23 U.S.C. 327(b)(2), relating to the infor-mation which must be contained in an application by a State to participate in the program allowing the Secretary to assign, and a State Department of Transportation (State DOT) to assume, responsibilities fo
4、r compliance with the National Environmental Policy Act (NEPA) (42 U.S.C. 43214347) and other Federal environmental laws pertaining to the review or approval of a highway project(s). 773.102 Applicability. This part applies to any State DOT eligible under the provisions of 23 U.S.C. 327 that submits
5、 an application for participation in the program. 773.103 Definitions. Unless otherwise specified in this part, the definitions in 23 U.S.C. 101(a) are applicable to this part. As used in this part: Classes of highway projects means ei-ther a defined group of highway projects or all highway projects
6、 to which Federal environmental laws apply. Federal environmental law means any Federal law or Executive Order (EO) under which the Secretary of the United States Department of Transpor-tation has responsibilities for environ-mental review, consultation, or other action with respect to the review or
7、 ap-proval of highway projects. A list of the Federal environmental laws for which a State DOT may assume the re-sponsibilities of the Secretary under this pilot program include, but are not limited to, the list of laws contained in Appendix A to this Part. But, under 23 U.S.C. 327(a)(2)(B), the Sec
8、retarys re-sponsibility for conformity determina-tions required under section 176 of the Clean Air Act (42 U.S.C. 7506) and the responsibility imposed on the Sec-retary under 23 U.S.C. 134 and 135 are not included in the program. Also, Fed-eral environmental law includes only laws that are inherentl
9、y environmental and does not include responsibilities such as Interstate access approvals (23 U.S.C. 111). Highway project means any under-taking to construct (including initial construction, reconstruction, replace-ment, rehabilitation, restoration, or other improvements) a highway, bridge, or tunn
10、el, or any portion there-of, including environmental mitigation activities, which is eligible for assist-ance under title 23 of the United States Code. A highway project may include an undertaking that involves a series of contracts or phases, such as a cor-ridor, and also may include anything that
11、may be constructed in connection with a highway, bridge, or tunnel. However, the term highway project does not include any of the priority projects designated under Executive Order 13274; does not include any Fed-eral Lands Highway project unless such project is to be designed and con-structed by th
12、e State DOT; and does not include projects that are funded under chapter 53 of title 49, United States Code. Nothing in this part is in-tended to limit the consideration of any alternative in conducting an envi-ronmental analysis under any Federal environmental law, even if the par-ticular alternati
13、ve would provide for a project that is excluded under this sec-tion and may consider and include that alternative within the range of alter-natives for a highway project. Program means the Surface Trans-portation Project Delivery Program established under 23 U.S.C. 327, which allows up to five State
14、 DOTs to assume VerDate Mar2010 09:39 May 11, 2011 Jkt 223076 PO 00000 Frm 00450 Fmt 8010 Sfmt 8010 Y:SGML223076.XXX 223076wwoods2 on DSK1DXX6B1PROD with CFRProvided by IHSNot for ResaleNo reproduction or networking permitted without license from IHS-,-,-441 Federal Highway Administration, DOT 773.1
15、06 all or part of the responsibilities for environmental review, consultation, or other action required under any Fed-eral environmental law pertaining to the review or approval of one or more highway projects. 773.104 Eligibility. (a) Only a State DOT of a State is eli-gible to participate in the p
16、rogram. (b) The program is limited to a max-imum five State DOTs, including the State DOTs of Alaska, California, Ohio, Oklahoma and Texas as the five partic-ipant States. Should any of these five State DOTs choose not to apply, have its participation terminated, or with-draw from the pilot program,
17、 another State DOT may be selected. 773.105 Statements of interest. (a) The State DOTs of Alaska, Cali-fornia, Ohio, Oklahoma and Texas are given priority for participation in the program. (b) Within sixty days of March 14, 2007, the State DOTs of Alaska, Cali-fornia, Ohio, Oklahoma and Texas shall
18、submit a statement of interest to par-ticipate in the program. The statement of interest shall declare that the State DOT intends to submit an application to participate in the pilot program. (c) Should any of the State DOTs of Alaska, California, Ohio, Oklahoma and Texas fail to submit a statement
19、of interest by May 14, 2007 or decline par-ticipation in the pilot program, such State DOT shall no longer be given pri-ority consideration for selection in the program and its application will be se-lected in competition with other State DOTs. (d) Should any of the State DOTs of Alaska, California,
20、 Ohio, Oklahoma and Texas submit a statement of inter-est declaring their intent to partici-pate in the program, the State shall ac-tively work to develop and submit its application and meet all applicable program criteria (including the enact-ment of necessary State legal author-ity). 773.106 Appli
21、cation requirements for participation in the program. (a) Each State DOT wishing to par-ticipate in the program must submit an application to the FHWA. (b) Each application submitted to the FHWA must contain the following in-formation: (1) The highway project(s) or classes of highway projects for wh
22、ich the State is requesting to assume FHWAs re-sponsibilities under NEPA. The State DOT must specifically identify, in its application, each project for which a draft environmental impact statement has been issued prior to the submission of its application to the FHWA; (2) The specific responsibilit
23、ies for the environmental review, consulta-tion, or other action required under other Federal environmental laws, if any, pertaining to the review or ap-proval of a highway project, or classes of highway projects, that the State DOT wishes to assume under this pro-gram. The State DOT must also indi-
24、cate whether it proposes to phase-in the assumption of these responsibil-ities; (3) For each responsibility requested in paragraphs (b)(1) and (b)(2) of this section, the State DOT shall submit a description in the application detailing how it intends to carry out these re-sponsibilities. The descri
25、ption shall in-clude: (i) A summary of State procedures currently in place to guide the develop-ment of documents, analyses and con-sultations required to fulfill the envi-ronmental responsibilities requested. The actual procedures should be sub-mitted with the application, or if avail-able electron
26、ically, the Web link must be provided; (ii) Any changes that have been or will be made in the management of the environmental program to provide the additional staff and training necessary for quality control and assurance, ap-propriate levels of analysis, adequate expertise in areas where responsib
27、il-ities have been requested, and expertise in management of the NEPA process; (iii) A discussion of how the State DOT will verify legal sufficiency for the environmental document it pro-duces; and (iv) A discussion of how the State DOT will identify and address those projects that would normally re
28、quire FHWA headquarters prior concurrence of the FEIS under 23 CFR 771.125(c). VerDate Mar2010 09:39 May 11, 2011 Jkt 223076 PO 00000 Frm 00451 Fmt 8010 Sfmt 8010 Y:SGML223076.XXX 223076wwoods2 on DSK1DXX6B1PROD with CFRProvided by IHSNot for ResaleNo reproduction or networking permitted without lic
29、ense from IHS-,-,-442 23 CFR Ch. I (4111 Edition) 773.107 (4) A verification of the personnel necessary to carry out the authority that may be granted under the pro-gram. The verification shall contain the following information: (i) A description of the staff posi-tions, including management, that w
30、ill be dedicated to providing the addi-tional functions needed to accept the delegated responsibilities; (ii) A description of any changes to the State DOTs organizational struc-ture that are deemed necessary to pro-vide for efficient administration of the responsibilities assumed; and (iii) A discu
31、ssion of personnel needs that may be met by the State DOTs use of outside consultants, including legal counsel provided by the State Attorney General or private counsel; (5) A summary of financial resources showing the anticipated financial re-sources available to meet the activities and staffing ne
32、eds identified in (b)(3) and (b)(4) of this part, and a commit-ment to make adequate financial re-sources available to meet these needs; (6) Certification and explanation by States Attorney General, or other State official legally empowered by State law, that the State DOT can and will assume the re
33、sponsibilities of the Secretary for the Federal environ-mental laws and projects requested and that the State DOT will consent to ex-clusive Federal court jurisdiction with respect to the responsibilities being as-sumed. Such consent must be broad enough to include future changes in relevant Federal
34、 policies and proce-dures to which FHWA would be subject or such consent would be amended to include such future changes; (7) Certification by the States Attor-ney General, or other State official le-gally empowered by State law, that the State has laws that are comparable to the Federal Freedom of
35、Information Act (5 U.S.C. 552), including laws that allow for any decision regarding the public availability of a document under those laws to be reviewed by a court of competent jurisdiction; and (8) Evidence that the required notice and solicitation of public comment by the State DOT relating to p
36、articipa-tion in the program has taken place. Requirements for notice and solicita-tion of public comments are as follows: (i) not later than 30 days prior to sub-mitting its application, a State must give notice that the State intends to participate in the program and solicit public comment by publ
37、ishing the com-plete application of the State in ac-cordance with the appropriate public notice law of the State. If allowed under State law, publishing a notice of availability of the application rather than the application itself may satisfy the requirements of this subparagraph so long as the com
38、plete application is made reasonably available to the pub-lic for inspection and copying, and (ii) copies of all comments received shall be submitted with the applica-tion. The State should summarize the comments received, and note changes, if any, that were made in the applica-tion in response to p
39、ublic comments. (c) The application shall be signed by the Governor or the head of the State agency having primary jurisdiction over highway matters. The application must also identify a point of contact for questions regarding the application. Applications may be submitted in elec-tronic format. 77
40、3.107 Application approval. If a State DOTs application is ap-proved, then the State DOT will be in-vited to enter into a written Memo-randum of Understanding (MOU) with the FHWA, as provided in 23 U.S.C. 327. None of FHWAs responsibilities under NEPA or other environmental laws may be assumed by th
41、e State DOT prior to execution of the MOU. 773.108 Application amendments. (a) After a State DOT submits its ap-plication to the FHWA, but prior to the execution of a MOU, the State DOT may amend its application at any time to request additional highway projects, classes of highway projects, or more
42、 environmental responsibilities. How-ever, prior to making any such amend-ments, the State DOT must provide no-tice and solicit public comments with respect to the intended amendments. In submitting the amendment to the FHWA, the State DOT must provide copies of all comments received and note the ch
43、anges, if any, that were made in response to the comments. VerDate Mar2010 09:39 May 11, 2011 Jkt 223076 PO 00000 Frm 00452 Fmt 8010 Sfmt 8010 Y:SGML223076.XXX 223076wwoods2 on DSK1DXX6B1PROD with CFRProvided by IHSNot for ResaleNo reproduction or networking permitted without license from IHS-,-,-44
44、3 Federal Highway Administration, DOT Pt. 774 (b) A State DOT may amend its ap-plication no earlier than one year after a MOU has been executed to request additional highway projects, classes of highway projects, or more environ-mental responsibilities. However, prior to making any such amendments,
45、the State DOT must provide notice and so-licit public comments with respect to the intended amendments. In submit-ting the amendment to the FHWA, the State DOT must provide copies of all comments received and note the changes, if any, that were made in re-sponse to the comments. APPENDIX A TO PART 7
46、73FHWA ENVI-RONMENTAL RESPONSIBILITIES THAT MAY BE ASSIGNED UNDER SECTION 6005 Federal Procedures National Environmental Policy Act (NEPA), 42 U.S.C. 432143351. FHWA Environmental Regulations at 23 CFR Part 771, 772 and 777 CEQ Regulations at 40 CFR 15001508 Clean Air Act, 42 U.S.C. 74017671(q). Any
47、 de-terminations that do not involve conformity. Noise Compliance with the noise regulations at 23 CFR part 772 Wildlife Section 7 of the Endangered Species Act of 1973, 16 U.S.C. 15311544, and Section 1536 Marine Mammal Protection Act, 16 U.S.C. 1361 Anadromous Fish Conservation Act, 16 U.S.C. 757(
48、a)757(g) Fish and Wildlife Coordination Act, 16 U.S.C. 661667(d) Migratory Bird Treaty Act, 16 U.S.C. 703712 Magnuson-Stevenson Fishery Conservation and Management Act of 1976, as amend-ed, 16 U.S.C. 1801 et seq. Historic and Cultural Resources Section 106 of the National Historic Preser-vation Act
49、of 1966, as amended, 16 U.S.C. 470(f) et seq. Archeological Resources Protection Act of 1977, 16 U.S.C. 470(aa)11 Archeological and Historic Preservation Act, 16 U.S.C. 469469(c) Native American Grave Protection and Re-patriation Act (NAGPRA), 25 U.S.C. 3001 3013 Social and Economic Impacts American Indian Religious Freedom Act, 42 U.S.C. 1996 Farmland Protection Policy Act (FPPA), 7 U.S.C. 42014209 Water Resources and Wetlands Clean Water Act, 33 U.S.C
