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###### Department of Transportation

###### Federal Highway Administration

          - [Docket No. FHWA-2022-0001]

# AGENCY:

Federal Highway Administration (FHWA), Department of Transportation.

# ACTION:

Notice of proposed renewal of MOU, request for comments.

# SUMMARY:

The FHWA and the State of California, acting by and through its Department of Transportation (Caltrans), propose renewing the MOU authorizing Caltrans' participation in the Categorical Exclusion Assignment program. This program allows FHWA to assign its authority and responsibility for determining whether certain designated activities within the geographic boundaries of the State, as specified in the proposed MOU, are categorically excluded from preparation of an environmental assessment or an environmental impact statement under the National Environmental Policy Act.

# DATES:

Comments must be received on or before April 13, 2022.

# ADDRESSES:

You may submit comments, identified by DOT Document Management System (DMS) Docket Number FHWA-2022-0001, by any of the methods described below. To ensure that you do not duplicate your submissions, please submit them by only one of the means below. Electronic comments are preferred because Federal offices experience intermittent mail delays from security screening.

*Federal eRulemaking Portal:*                         Go to website:                         *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 Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Eastern Time, Monday through Friday, except Federal holidays.                    

                        For access to the docket to view a complete copy of the proposed 2022 renewal MOU, or to read background documents or comments received, go to                         *http://www.regulations.gov/​*                         at any time, or to 1200 New Jersey Avenue SE, Washington, DC 20590, between 9 a.m. and 5 p.m., Eastern Time, Monday through Friday, except Federal holidays.                    

*Instructions:*                         You must include the agency name and docket number 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: Shawn Oliver; by email at                         *Shawn.Oliver@dot.gov*                         or by telephone at 916-498-5048. The California Division Office's normal business hours                               ( print page 14318)                            are 8 a.m. to 4:30 p.m. (Pacific Time), Monday through Friday, except Federal holidays. For the State of California: Chris Benz-Blumberg: By email at                         *Chris.Benz-Blumberg@dot.ca.gov*                         or by telephone at 916-956-8660. The Caltrans' business hours are the same as above although State holidays may not completely coincide with 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 Publishing Office's database at:                     *http://www.govinfo.gov/​.*                     An electronic version of the proposed 2022 renewal 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 Secretary of the U.S. Department of Transportation (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 Federal highway projects. The FHWA is authorized to act on behalf of the Secretary with respect to these matters.                

The FHWA renewed California's participation in this program for a fourth time on April 18, 2019. The original MOU became effective on June 7, 2007, for an initial term of 3 years. The first renewal followed on June 7, 2010, the second renewal followed on June 7, 2013. The third renewal followed on May 31, 2016, and was amended on December 30, 2016. The fourth renewal has an expiration date of April 18, 2022.

Prior MOUs in this program had 3-year terms. Changes to 23 U.S.C. 326(c)(3) under the Bipartisan Infrastructure Law (Infrastructure Investment and Jobs Act, Pub. L. 117-58), enacted on November 15, 2021, require that MOUs have a term of 5 years for a State that has assumed the responsibility for CEs under the program for 10 years or longer. Caltrans has participated in this program for 14 years. Therefore, this proposed renewal MOU will have a term of 5 years.

Statewide decision making responsibility would be assigned for all activities identified in the MOU within the categories listed in 23 CFR 771.117(c) and those listed as examples in 23 CFR 771.111(d), and any activities added through FHWA rulemaking to those listed in 23 CFR 771.117(c) or example activities listed in 23 CFR 771.117(d) after the date of the execution of this MOU. 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:

Clean Air Act (CAA),42 U.S.C. 7401-7671q.                     *Including determinations for project-level conformity if required for the project, except as specified in Stipulation II.B.2 of the MOU*
42 U.S.C. 4901-4918
23 CFR part 772
23 CFR 772.7
16 U.S.C. 1531-1544
1536
16 U.S.C. 1361-1423h
16 U.S.C. 757a-757f
16 U.S.C. 661-667d
16 U.S.C. 703-712
16 U.S.C. 1801-1891d
54 U.S.C. 306108
16 U.S.C. 470aa
54 U.S.C. 312501-312508
25 U.S.C. 3001-3013
18 U.S.C. 1170

Section 4(f) of the Department of Transportation Act of 1966,23 U.S.C. 138 and 49 U.S.C. 303; 23 CFR part 774,                     *except as specified in Stipulation II.B.2 of the MOU*
42 U.S.C. 1996
7 U.S.C. 4201-4209
33 U.S.C. 1251-1377
16 U.S.C. 3501-3510
16 U.S.C. 1451-1466
33 U.S.C. 403
16 U.S.C. 1271-1287
16 U.S.C. 3921
3931
23 U.S.C 103(b)(6)(m)
133(b)(3)
23 CFR part 777
42 U.S.C. 4001-4128
42 U.S.C. 300f-300j-6
42 U.S.C. 9601-9675
42 U.S.C. 9671-9675
42 U.S.C. 6901-6992k
23 U.S.C. 319
E.O. 11990
E.O. 11988
23 CFR 650.113
650.115
E.O. 12898
E.O. 11593
E.O. 13007
E.O. 13122
23 U.S.C. 168
23 U.S.C. 134
135
23 U.S.C. 169
23 U.S.C. 134
135

                    The MOU allows the State to act in the place of 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.                           ( print page 14319)                        The State may also assist FHWA with formal consultations, with consent of a tribe, but FHWA remains responsible for the consultation.                

The FHWA will consider the comments submitted on the proposed fifth renewal MOU when making its decision on whether to execute this 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.                

Vincent Mammano,

Division Administrator, Federal Highway Administration.

[FR Doc. 2022-05332 Filed 3-11-22; 8:45 am]

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