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###### Department of Transportation

###### Federal Highway Administration 

          - [Docket No. FHWA-2008-0140] 

# AGENCY:

Federal Highway Administration (FHWA), Alaska Division Office, DOT. 

# ACTION:

Notice of proposed MOU and request for comments.

# SUMMARY:

                        This notice announces that the FHWA and the Alaska Department of Transportation and Public Facilities (State) have developed a proposed MOU, pursuant to 23 U.S.C. 326, under which the FHWA would assign to the State the FHWA's responsibility for determining whether a project is categorically excluded from preparation of an environmental assessment or an environmental impact statement under the National Environmental Policy Act of 1969, 42 U.S.C. 4321*et seq.*                         (NEPA), and for carrying out certain other responsibilities for conducting environmental reviews, consultations, and related activities for Federal-aid highway projects. The public is invited to comment on any aspect of the proposed MOU, including the proposed designations of categorical exclusions and scope of environmental review, consultation and other activities to be assigned.                     

# DATES:

Please submit comments by November 28, 2008. 

# ADDRESSES:

You may submit comments identified by Federal Document Management System (FDMS) Docket Number FHWA-2008-0140, or by any of the following methods: 

*Web site: http://www.regulations.gov*.                     

*Fax:*                         1-202-493-2251.                     

*Mail:*                         Docket Management Facility; U.S. Department of Transportation, 1200 New Jersey Avenue, SE., Room W12-140, Washington, DC 20590-0001                     

*Hand Delivery:*                         U.S. Department of Transportation, 1200 New Jersey Avenue, SE., Room W12-140, Washington DC, between 9 a.m. and 5 p.m. (EST), Monday through Friday, except federal holidays.                     

*Docket:*                         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 go to the ground floor, U.S. Department of Transportation, Room W12-140, 1200 New Jersey Avenue, SE., Washington DC, between 9 a.m. and 5 p.m. (EST), Monday through Friday, except federal holidays.                     

# FOR FURTHER INFORMATION CONTACT:

                        Tim Haugh, Environmental Program Manager, FHWA Alaska Division, 709 West 9th Street, Room 851, Juneau, AK 99802, Office Hours 7 a.m. to 3:30 p.m. (AST) Monday through Friday, (907) 586-7418,                         *tim.haugh@dot.gov*; or William Ballard, Statewide Environmental Manager, Statewide Design and Engineering Services, Alaska Department of Transportation and Public Facilities, P.O. Box 112500, Juneau, AK 99811-2500, Office Hours 8 a.m. to 4:30 p.m. (AST) Monday through Friday, (907) 465-6954,                         *bill.ballard@alaska.gov*.                     

# SUPPLEMENTARY INFORMATION:

## Electronic Access 

                    An electronic copy of this notice may be downloaded using a computer, modem, and suitable communications software from the Government Printing Office's Electronic Bulletin Board Service at (202) 512-1661. Internet users may reach the Office of the Federal Register's home page at                     *http://www.archives.gov*                     and the Government Printing Office's Web site at                     *http://www.access.gpo.gov.*                     An electronic version of the proposed MOU may be downloaded by accessing the FDMS docket, as described above, at                     *http://www.regulations.gov*.                           ( print page 60751)    

## Background 

Section 6004(a) of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (Pub. L. 109-059), codified as Section 326 of amended Chapter 3 of Title 23, United States Code (23 U.S.C. 326), allows the Secretary of the United States Department of Transportation (USDOT Secretary), to assign, and a State to assume, responsibility for determining whether certain designated activities are included within classes of action that are categorically excluded from requirements for environmental assessments or environmental impact statements pursuant to regulations promulgated by the Council on Environmental Quality under part 1500 of Title 40, Code of Federal Regulations (CFR) (as in effect on October 1, 2003). The FHWA is authorized to act on behalf of the USDOT Secretary with respect to these matters. 

Under the proposed MOU, the FHWA would assign to the State the responsibility for making decisions on the following types of categorical exclusions: 

1. Activities listed in 23 CFR 771.117(c); 

2. The example activities listed in 23 CFR 771.117(d); and 

3. Additional actions listed in Appendix A; None. 

The proposed MOU also 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, 42 U.S.C. 7401-7671q, determinations for 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 (except as specified in Stipulation II.B.2 of the MOU) 

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. Bald and Golden Eagle Protection Act, 16 U.S.C. 668-668c

10. Section 106 of the National Historic Preservation Act of 1966, as amended, 16 U.S.C. 470(f) et seq. 

11. Section 4(f) of the Department of Transportation Act of 1966, 23 U.S.C. 138 and 49 U.S.C. 303

12. Archaeological and Historic Preservation Act of 1966, as amended, 16 U.S.C. 469-469(c)

13. American Indian Religious Freedom Act, 42 U.S.C. 1996

14. Farmland Protection Policy Act, 7 U.S.C. 4201-4209

15. Clean Water Act, 33 U.S.C. 1251-1377

16. Coastal Barrier Resources Act, 16 U.S.C. 3501-3510

17. Coastal Zone Management Act, 16 U.S.C. 1451-1465

18. Safe Drinking Water Act, 42 U.S.C. 300f-300j-6

19. Rivers and Harbors Act of 1899, 33 U.S.C. 401-406

20. Wild and Scenic Rivers Act, 16 U.S.C. 1271-1287

21. Emergency Wetlands Resources Act, 16 U.S.C. 3921, 3931

22. Transportation Equity Act of the 21st Century, 23 U.S.C. 103(b)(6)(m) and 133(b)(11)

23. Flood Disaster Protection Act, 42 U.S.C. 4001-4128

24. Land and Water Conservation Fund, 16 U.S.C. 4601-4604

25. Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. 9601-9675

26. Superfund Amendments and Reauthorization Act of 1986 

27. Resource Conservation and Recovery Act, 42 U.S.C. 6901-6992k

28. Landscaping and Scenic Enhancement, 23 U.S.C. 319

29. E.O. 11990, Protection of Wetlands 

30. E.O. 11988, Floodplain Management 

31. E.O. 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low Income Populations 

32. E.O. 11593, Protection and Enhancement of the Cultural Environment 

33. E.O. 13007, Indian Sacred Sites 

34. E.O. 13175, Consultation and Coordination with Indian Tribal Governments 

35. E.O. 13112, Invasive Species 

The MOU would allow 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 listed laws and executive orders. The State will continue to handle routine consultations with the tribes and understands that a tribe has the right to direct consultation with the FHWA upon request. 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 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. 

                    A copy of the proposed MOU may be viewed on the FDMS Docket, as described above, or may be obtained by contacting the FHWA or the State at the addresses provided above. A copy also may be viewed at                     *http://www.dot.state.ak.us/​stwddes/​dcsenviron/​index.shtml*.                 

                    Once the FHWA makes a decision on the proposed MOU, the FHWA will place in the FDMS Docket a statement describing the outcome of the decision-making process and a copy of the final MOU, if any. Copies of those documents also may be obtained by contacting the FHWA or the State of Alaska at the addresses provided above, or by viewing the documents at                     *http://www.dot.state.ak.us/​stwddes/​dcsenviron/​index.shtml.*

(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: October 6, 2008. 

David C. Miller, 

Division Administrator, Juneau, Alaska.

 [FR Doc. E8-24249 Filed 10-10-08; 8:45 am] 

BILLING CODE 4910-RY-P