Federal Register / Vol. 82, No. 164 / Friday, August 25, 2017 / Notices 40625 

certificate. A person who is applying for 

a U.S. pilot certificate/rating on the 

basis of a foreign-pilot license must 

apply for verification of that license at 

least 90 days before arriving at the 

designated FAA FSDO where the 

applicant intends to receive the U.S. 

pilot certificate. 

Respondents: Approximately 8,700 

foreign applicants for U.S. certificates 

annually. 

Frequency: On occasion. 

Estimated Average Burden per 

Response: 10 minutes. 

Estimated Total Annual Burden: 

1,450 hours. 

Issued in Washington, DC, on August 21, 

2017. 

Ronda L. Thompson, 

FAA Information Collection Clearance 

Officer, Performance, Policy & Records 

Management Branch, ASP–110. 

[FR Doc. 2017–17995 Filed 8–24–17; 8:45 am] 

BILLING CODE 4910–13–P 

DEPARTMENT OF TRANSPORTATION 

Federal Highway Administration 

[Docket No. FHWA–2017–0024] 

Application From the State of Alaska to 

the Surface Transportation Project 

Delivery Program and Proposed 

Memorandum of Understanding (MOU) 

Assigning Environmental 

Responsibilities to the State 

AGENCY: Federal Highway 

Administration (FHWA), U.S. 

Department of Transportation (USDOT). 

ACTION: Notice of proposed MOU and 

request for comments. 

SUMMARY: This notice announces that 

FHWA has received and reviewed an 

application from the Alaska Department 

of Transportation and Public Facilities 

(DOT&PF) requesting participation in 

the Surface Transportation Project 

Delivery Program (Program). This 

Program allows for FHWA to assign, and 

the State to assume, responsibilities 

under the National Environmental 

Policy Act of 1969 (NEPA), and all or 

part of FHWA’s responsibilities for 

environmental review, consultation, or 

other actions required under any 

Federal environmental law with respect 

to one or more Federal highway projects 

within the State. The FHWA has 

determined the application to be 

complete and developed a draft MOU 

with DOT&PF outlining how the State 

would implement the Program with 

FHWA oversight. The FHWA invites the 

public to comment on DOT&PF’s 

request, including its application and 

the proposed MOU, which includes the 

proposed assignments and assumptions 

of environmental review, consultation, 

and other activities. 

DATES: Please submit comments by 

September 25, 2017. 

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. 

• Facsimile (Fax): 1–202–493–2251. 

• Mail: Docket Management Facility; 

U.S. Department of Transportation, 1200 

New Jersey Ave. SE., West Building 

Ground Floor Room W12–140, 

Washington, DC 20590–0001. 

• Hand Delivery: West Building 

Ground Floor, Room W12–140, 1200 

New Jersey Ave. SE., Washington, DC 

20590 between 9:00 a.m. and 5:00 p.m. 

e.t., 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: 

Tim Haugh, Environmental Program 

Manager, Federal Highway 

Administration Alaska Division, P.O. 

Box 21648, 709 West 9th Street, Room 

851, Juneau, AK, 99802, 8:00 a.m.–4:30 

p.m. (AKDT), (907) 586–7418, 

Tim.Haugh@dot.gov. 

Taylor C. Horne, Statewide 

Environmental Program Manager, 

Statewide Environmental Office, Alaska 

Department of Transportation and 

Public Facilities, P.O. Box 112500, 3132 

Channel Drive, Juneau, AK, 99811, 8:00 

a.m.–4:30 p.m. (AKDT), (907) 465–6957, 

NEPA@alaska.gov. 

SUPPLEMENTARY INFORMATION: 

Electronic Access 

An electronic copy of this notice may 

be downloaded from the Federal 

Register’s home page at http://

www.archives.gov. An electronic 

version of the application materials and 

proposed MOU may be downloaded by 

accessing the online docket, as 

described above, at http://

www.regulations.gov/. 

Background 

Section 327 of title 23, United States 

Code (23 U.S.C. 327), allows the 

Secretary of the U.S. Department of 

Transportation (Secretary) to assign, and 

a State to assume, responsibility for all 

or part of FHWA’s responsibilities for 

environmental review, consultation, or 

other actions required under the 

National Environmental Policy Act of 

1969 (42 U.S.C. 4321 et seq.) and any 

Federal environmental law with respect 

to one or more Federal-aid highway 

projects within the State. The FHWA is 

authorized to act on behalf of the 

Secretary with respect to these matters. 

Under the proposed MOU, FHWA 

would assign to the State, through 

DOT&PF, the responsibility for making 

decisions on highway projects within 

the State of Alaska that are proposed to 

be funded with title 23 funds or 

otherwise require FHWA approval, and 

that require preparation of a categorical 

exclusion determination, environmental 

assessment (EA), or environmental 

impact statement (EIS) with the 

exception of the following: 

(1) EIS projects—67698 & 67877/ 

0922005 & 0922008 Gravina Access, 

71100/000S131 Juneau Access 

Improvements, 53014/0212015 Sterling 

Highway: MP 45–60; 

(2) highway projects authorized under 

23 U.S.C. 202, 203, and 204, unless the 

project will be designed and/or 

constructed by DOT&PF; 

(3) projects that cross or are adjacent 

to international boundaries; 

(4) programs and projects advanced 

by direct recipients of Federal-aid 

Highway Program funds other than 

DOT&PF, including but not limited to 

recipients of: Recreational Trails 

program funds, TIGER Discretionary 

grants, direct recipient Tribal projects, 

and the Shakwak program; 

(5) privately-funded or other Federal 

agency funded projects requiring NEPA 

review as part of Interstate access 

approvals, unless such projects will be 

designed and constructed by DOT&PF; 

and 

(6) private requests for changes in 

controlled access, unless such projects 

will be designed and constructed by 

DOT&PF. 

The assignment also would give the 

State the responsibility to conduct the 

following environmental review, 

consultation, and other related activities 

for project delivery: 

Air Quality 

• Clean Air Act, 42 U.S.C. 7401–7671q, 

with the exception of project level 

conformity determinations 

Alaska Specific 

• Alaska National Interest Lands 

Conservation Act (ANILCA), Public 

Law 96–487, except any 

responsibilities under 16 U.S.C. 

410hh(4)(d) 


sradovich on DSK3GMQ082PROD with NOTICES
40626 Federal Register / Vol. 82, No. 164 / Friday, August 25, 2017 / Notices 

Executive Orders (E.O.) Relating to 

Highway Projects 

• E.O. 11593, Protection and 

Enhancement of the Cultural 

Environment 

• E.O. 11988, Floodplain Management 

(except approving design standards 

and determinations that a significant 

encroachment is the only practicable 

alternative under 23 CFR parts 

650.113 and 650.115) 

• E.O. 11990, Protection of Wetlands 

• E.O. 12898, Federal Actions to 

Address Environmental Justice in 

Minority Populations and Low 

Income Populations 

• E.O. 13007, Indian Sacred Sites 

• E.O. 13112, Invasive Species, as 

amended by E.O. 13751, Safeguarding 

the Nation from the Impacts of 

Invasive Species 

• E.O. 13175, Consultation and 

Coordination with Indian Tribal 

Governments 

FHWA-Specific 

• Efficient Project Reviews for 

Environmental Decision Making, 23 

U.S.C. 139 

• Environmental Impact and Related 

Procedures, 23 CFR part 771 

• Planning and Environmental 

Linkages, 23 U.S.C. 168, with the 

exception of those FHWA 

responsibilities associated with 23 

U.S.C. 134 and 135 

• Programmatic Mitigation Plans, 23 

U.S.C. 169, with the exception of 

those FHWA responsibilities 

associated with 23 U.S.C. 134 and 135 

Hazardous Materials Management 

• Comprehensive Environmental 

Response, Compensation, and 

Liability Act (CERCLA), 42 U.S.C. 

9601–9675 

• Resource Conservation and Recovery 

Act (RCRA), 42 U.S.C. 6901–6992k 

• Superfund Amendments and 

Reauthorization Act (SARA), 42 

U.S.C. 9671–9675 

Historic and Cultural Resources 

• Archeological and Historic 

Preservation Act of 1974, as amended, 

54 USC 312501–312508 

• Archeological Resources Protection 

Act of 1979, 16 U.S.C. 470(aa)–(mm) 

• Native American Grave Protection 

and Repatriation Act (NAGPRA), 25 

U.S.C. 3001–3013; 18 U.S.C. 1170 

• Preservation of Historical and 

Archaeological Data, 54 U.S.C. 

312501–312508 

• Section 106 of the National Historic 

Preservation Act of 1966, as amended, 

54 U.S.C. 306108. 

Land 

• Landscaping and Scenic 

Enhancement (Wildflowers), 23 

U.S.C. 319 

Noise 

• Compliance with the noise 

regulations in 23 CFR part 772 

• Noise Control Act of 1972, 42 U.S.C. 

4901–4918 

Parklands and Other Special Land Uses 

• Land and Water Conservation Fund 

(LWCF) Act, 54 U.S.C. 200302– 

200310 

• Section 4(f) of the Department of 

Transportation Act of 1966, 23 U.S.C. 

138, 49 U.S.C. 303, and implementing 

regulations at 23 CFR part 774 

Social and Economic Impacts 

• American Indian Religious Freedom 

Act, 42 U.S.C. 19961 

• Farmland Protection Policy Act 

(FPPA), 7 U.S.C. 4201–4209 

Water Resources and Wetlands 

• Clean Water Act, 33 U.S.C. 1251–1387 

Æ Section 319, 33 U.S.C. 1329 

Æ Section 401, 33 U.S.C. 1341 

Æ Section 404, 33 U.S.C. 1344 

• Emergency Wetlands Resources Act, 

16 U.S.C. 3901 and 3921 

• FHWA wetland and natural habitat 

mitigation regulations, 23 CFR part 

777 

• Flood Disaster Protection Act, 42 

U.S.C. 4001–4130 

• Mitigation of Impacts to Wetlands and 

Natural Habitat, 23 CFR part 777 

• Rivers and Harbors Act of 1899, 33 

U.S.C. 403 

• Safe Drinking Water Act (SDWA), 42 

U.S.C. 300f–300j–26 

• Wetlands Mitigation, 23 U.S.C. 119(g) 

and 133(b)(11) 

• Wild and Scenic Rivers Act, 16 U.S.C. 

1271–1287 

Wildlife 

• Anadromous Fish Conservation Act, 

16 U.S.C. 757a–757f 

• Bald and Golden Eagle Protection Act, 

as amended, 16 U.S.C. 668–668c 

• Fish and Wildlife Coordination Act, 

16 U.S.C. 661–667d 

• Magnuson-Stevens Fishery 

Conservation and Management Act of 

1976, as amended, 16 U.S.C. 1801– 

1891d 

• Marine Mammal Protection Act, 16 

U.S.C. 1361–1423h 

• Migratory Bird Treaty Act, 16 U.S.C. 

703–712 

• Section 7 of the Endangered Species 

Act of 1973, 16 U.S.C. 1536 

The MOU would allow DOT&PF to 

act in the place of FHWA in carrying out 

the environmental review-related 

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 

DOT&PF 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 DOT&PF also 

may assist FHWA with formal 

consultations, with consent of a tribe, 

but FHWA remains responsible for the 

consultation. 

The DOT&PF will not assume 

FHWA’s responsibilities for conformity 

determinations required under Section 

176 of the CAA (42 U.S.C. 7506), or any 

responsibility under 23 U.S.C. 134 or 

135, or under 49 U.S.C. 5303 or 5304. 

A copy of the proposed MOU may be 

viewed on the online docket, as 

described above, or may be obtained by 

contacting FHWA or the State at the 

addresses provided above. A copy also 

may be viewed on DOT&PF’s Web site 

at: http://dot.alaska.gov/stwddes/ 

desenviron/resources/nepa.shtml. 

The FHWA Alaska Division, in 

consultation with FHWA Headquarters, 

will consider the comments submitted 

when making its decision on the 

proposed MOU. Any final MOU 

approved by FHWA may include 

changes based on comments and 

consultations relating to the proposed 

MOU and will be made publicly 

available. 

(Catalog of Federal Domestic Assistance 

Program Number 20.205, Highway Planning 

and Construction. The regulations 

implementing E.O. 12372 regarding 

intergovernmental consultation on Federal 

programs and activities apply to this 

program.) 

Authority: 23 U.S.C. 327; 42 U.S.C. 4331, 

4332; 23 CFR 771.101–139; 23 CFR 773.109; 

40 CFR 1507.3; and 49 CFR 1.85. 

Issued on: August 21, 2017. 

Brandye L. Hendrickson, 

Acting Administrator, Federal Highway 

Administration. 


sradovich on DSK3GMQ082PROD with NOTICES
Federal Register / Vol. 82, No. 164 / Friday, August 25, 2017 / Notices 40627 

MEMORANDUM OF 

UNDERSTANDING BETWEEN THE 

FEDERAL HIGHWAY 

ADMINISTRATION AND THE 

ALASKA DEPARTMENT OF 

TRANSPORTATION AND PUBLIC 

FACILITIES CONCERNING THE 

STATE OF ALASKA’S 

PARTICIPATION IN THE SURFACE 

TRANSPORTATION PROJECT 

DELIVERY PROGRAM PURSUANT TO 

23 U.S.C. 327 

THIS MEMORANDUM OF 

UNDERSTANDING (MOU), entered into 

by and between the FEDERAL 

HIGHWAY ADMINISTRATION 

(FHWA), an administration in the 

UNITED STATES DEPARTMENT OF 

TRANSPORTATION (USDOT), and the 

STATE OF ALASKA, acting by and 

through its ALASKA DEPARTMENT OF 

TRANSPORTATION AND PUBLIC 

FACILITIES (DOT&PF), hereby provides 

as follows: 

WITNESSETH 

Whereas, Section 327 of Title 23 of 

the United States Code (U.S.C.) 

establishes the Surface Transportation 

Project Delivery Program (Program) that 

allows the Secretary of the United States 

Department of Transportation (USDOT 

Secretary) to assign and states to assume 

the USDOT Secretary’s responsibilities 

under the National Environmental 

Policy Act of 1969, 42 U.S.C. 4321, et 

seq. (NEPA), and all or part of the 

USDOT Secretary’s responsibilities for 

environmental review, consultation, or 

other actions required by Federal 

environmental law with respect to 

highway, public transportation, railroad, 

and multimodal projects within the 

state; and 

Whereas, 23 U.S.C. 327(b)(2) requires 

a state to submit an application in order 

to participate in the Program; and 

Whereas, on May 1, 2016, prior to 

submittal of its application to FHWA, 

DOT&PF published notice of, and 

solicited public comment on, its draft 

application to participate in the Program 

as required by 23 U.S.C. 327(b)(3), and 

addressed the comments received as 

appropriate; and 

Whereas, Alaska Statute 44.42.300 

authorizes DOT&PF to participate in the 

Program; and 

Whereas, on July 12, 2016, the State 

of Alaska acting by and through 

DOT&PF, submitted an application to 

FHWA with respect to highway projects 

in the State of Alaska; and 

Whereas, on DATE TBD, FHWA 

published a notice in the Federal 

Register providing an opportunity for 

comment on its preliminary decision to 

approve DOT&PF’s application and 

solicited the views of other appropriate 

Federal agencies concerning DOT&PF’s 

application as required by 23 U.S.C. 

327(b)(5); and 

Whereas, the USDOT Secretary, acting 

by and through FHWA pursuant to 49 

CFR 1.85(a)(3), has determined that 

DOT&PF’s application meets the 

requirements of 23 U.S.C. 327 with 

respect to the Federal environmental 

laws and highway projects identified in 

this MOU. 

Now, therefore, FHWA and DOT&PF 

agree as follows: 

PART 1. PURPOSE OF 

MEMORANDUM OF 

UNDERSTANDING 

1.1 Purpose 

1.1.1 This MOU officially approves 

DOT&PF’s application to participate 

in the Program and is the written 

agreement required by 23 U.S.C. 

327(a)(2)(A) and (c) under which 

the USDOT Secretary may assign, 

and DOT&PF may assume, the 

responsibilities of the USDOT 

Secretary for Federal environmental 

laws with respect to one or more 

highway projects within the State of 

Alaska. 

1.1.2 FHWA’s decision to execute this 

MOU is based upon the 

information, representations, and 

commitments contained in 

DOT&PF’s May 31, 2016, 

application. As such, this MOU 

incorporates the application. To the 

extent there is any conflict between 

this MOU and the application, this 

MOU shall control. 

1.1.3 This MOU shall be effective 5 

days after signature of the final 

MOU (Effective Date). 

1.1.4 On the Effective Date, the MOU 

between DOT&PF and FHWA dated 

September 18, 2015, concerning the 

State Assumption of Responsibility 

for Categorical Exclusions under 23 

U.S.C. 326 will terminate, and be 

supplanted by this MOU. The 

Programmatic Agreements between 

DOT&PF and FHWA dated April 

13, 2012, concerning the processing 

of categorical exclusions [PCE 

Agreements pursuant to 23 CFR 

771.117(g)] will be suspended for 

the duration of the MOU. The PCE 

Agreements may be reinstated after 

the termination of this MOU if 

FHWA determines that the PCE 

Agreements continue to be valid 

pursuant to applicable statutory and 

regulatory authorities in effect at 

the time of MOU termination. 

1.1.5 Pursuant to 23 U.S.C. 

327(c)(3)(B) and 327(c)(3)(C), and 

subpart 4.3 of this MOU, third 

parties may challenge DOT&PF’s 

action in carrying out 

environmental review 

responsibilities assigned under this 

MOU. Otherwise, this MOU is not 

intended to, and does not, create 

any new right or benefit, 

substantive or procedural, 

enforceable at law or in equity by 

any third party against the State of 

Alaska, its departments, agencies, 

or entities, its officers, employees, 

or agents. This MOU is not 

intended to, and does not, create 

any new right or benefit, 

substantive or procedural, 

enforceable at law or in equity by 

any third party against the United 

States, its departments, agencies, or 

entities, its officers, employees, or 

agents. 

PART 2. [RESERVED] 

PART 3. ASSIGNMENTS AND 

ASSUMPTIONS OF RESPONSIBILITY 

3.1 Assignments and Assumptions of 

NEPA Responsibilities 

3.1.1 Pursuant to 23 U.S.C. 

327(a)(2)(A), on the Effective Date 

of this MOU, FHWA assigns, and 

DOT&PF assumes, subject to the 

terms and conditions set forth in 23 

U.S.C. 327 and this MOU, all of the 

USDOT Secretary’s responsibilities 

for compliance with the National 

Environmental Policy Act of 1969 

(NEPA), 42 U.S.C. 4321, et seq., 

with respect to the highway projects 

specified under subpart 3.3. This 

includes statutory provisions, 

regulations, policies, and guidance 

related to the implementation of 

NEPA for Federal-aid highway 

projects such as 23 U.S.C. 139, 40 

CFR parts 1500–1508, USDOT 

Order 5610.1C, and 23 CFR part 

771, as applicable. 

3.1.2 On the cover page of each 

Environmental Assessment (EA), 

Finding of No Significant Impact 

(FONSI), Environmental Impact 

Statement (EIS), and Record of 

Decision (ROD) prepared under the 

authority granted by this MOU, and 

for memoranda corresponding to 

any Categorical Exclusion (CE) 

determination it makes, DOT&PF 

shall insert the following language 

in a way that is conspicuous to the 

reader: 

The environmental review, 

consultation, and other actions 

required by applicable Federal 

environmental laws for this project 

are being, or have been, carried out 

by DOT&PF pursuant to 23 U.S.C. 

327 and a Memorandum of 

Understanding dated [INSERT 


sradovich on DSK3GMQ082PROD with NOTICES
40628 Federal Register / Vol. 82, No. 164 / Friday, August 25, 2017 / Notices 

DATE], and executed by FHWA and 

DOT&PF. 

3.1.3 The DOT&PF shall disclose to 

the public and agencies, as part of 

agency outreach and public 

involvement procedures, including 

any Notice of Intent or scoping 

meeting notice, the disclosure in 

subpart 3.1.2 above. 

3.2 Assignments and Assumptions of 

Responsibilities to Comply with 

Federal Environmental Laws Other 

Than NEPA 

3.2.1 Pursuant to 23 U.S.C. 

327(a)(2)(B), on the Effective Date of 

this MOU, FHWA assigns and 

DOT&PF assumes, subject to the 

terms and conditions set forth in 

this MOU, all of the USDOT 

Secretary’s responsibilities under 

NEPA for environmental review, 

reevaluation, consultation, or other 

action pertaining to the review or 

approval of highway projects 

specified under subpart 3.3 of this 

MOU, required under the following 

Federal environmental laws: 

Air Quality 

• Clean Air Act, 42 U.S.C. 7401–7671q, 

with the exception of project level 

conformity determinations 

Alaska Specific 

• Alaska National Interest Lands 

Conservation Act (ANILCA), Public 

Law 96–487, except any 

responsibilities under 16 U.S.C. 

410hh(4)(d) 

Executive Orders (E.O.) Relating to 

Highway Projects 

• E.O. 11593, Protection and 

Enhancement of the Cultural 

Environment 

• E.O. 11988, Floodplain Management 

(except approving design standards 

and determinations that a 

significant encroachment is the 

only practicable alternative under 

23 CFR parts 650.113 and 650.115) 

• E.O. 11990, Protection of Wetlands 

• E.O. 12898, Federal Actions to 

Address Environmental Justice in 

Minority Populations and Low 

Income Populations 

• E.O. 13007, Indian Sacred Sites 

• E.O. 13112, Invasive Species, as 

amended by E.O. 13751, 

Safeguarding the Nation from the 

Impacts of Invasive Species 

• E.O. 13175, Consultation and 

Coordination with Indian Tribal 

Governments 

FHWA-Specific 

• Efficient Project Reviews for 

Environmental Decision Making, 23 

U.S.C. 139 

• Environmental Impact and Related 

Procedures, 23 CFR part 771 

• Planning and Environmental 

Linkages, 23 U.S.C. 168, with the 

exception of those FHWA 

responsibilities associated with 23 

U.S.C. 134 and 135 

• Programmatic Mitigation Plans, 23 

U.S.C. 169, with the exception of 

those FHWA responsibilities 

associated with 23 U.S.C. 134 and 

135 

Hazardous Materials Management 

• Comprehensive Environmental 

Response, Compensation, and 

Liability Act (CERCLA), 42 U.S.C. 

9601–9675 

• Resource Conservation and Recovery 

Act (RCRA), 42 U.S.C. 6901–6992k 

• Superfund Amendments and 

Reauthorization Act (SARA), 42 

U.S.C. 9671–9675 

Historic and Cultural Resources 

• Archeological and Historic 

Preservation Act of 1974, as 

amended, 54 U.S.C. 312501–312508 

• Archeological Resources Protection 

Act of 1979, 16 U.S.C. 470(aa)– 

(mm) 

• Native American Grave Protection 

and Repatriation Act (NAGPRA), 25 

U.S.C. 3001–3013; 18 U.S.C. 1170 

• Preservation of Historical and 

Archaeological Data, 54 U.S.C. 

312501–312508 

• Section 106 of the National Historic 

Preservation Act of 1966, as 

amended, 54 U.S.C. 306108. 

Land 

• Landscaping and Scenic 

Enhancement (Wildflowers), 23 

U.S.C. 319 

Noise 

• Compliance with the noise 

regulations in 23 CFR part 772 

• Noise Control Act of 1972, 42 U.S.C. 

4901–4918 

Parklands and Other Special Land Uses 

• Land and Water Conservation Fund 

(LWCF) Act, 54 U.S.C. 200302– 

200310 

• Section 4(f) of the Department of 

Transportation Act of 1966, 23 

U.S.C. 138, 49 U.S.C. 303 and 

implementing regulations at 23 CFR 

part 774 

Social and Economic Impacts 

• American Indian Religious Freedom 

Act, 42 U.S.C. 19961 

• Farmland Protection Policy Act 

(FPPA), 7 U.S.C. 4201–4209 

Water Resources and Wetlands 

• Clean Water Act, 33 U.S.C. 1251–1387 

Æ Section 319, 33 U.S.C. 1329 

Æ Section 401 , 33 U.S.C. 1341 

Æ Section 404, 33 U.S.C. 1344 

• Emergency Wetlands Resources Act, 

16 U.S.C. 3901 and 3921 

• FHWA wetland and natural habitat 

mitigation regulations, 23 CFR part 

777 

• Flood Disaster Protection Act, 42 

U.S.C. 4001–4130 

• Mitigation of Impacts to Wetlands and 

Natural Habitat, 23 CFR part 777 

• Rivers and Harbors Act of 1899, 33 

U.S.C. 403 

• Safe Drinking Water Act (SDWA), 42 

U.S.C. 300f–300j-26 

• Wetlands Mitigation, 23 U.S.C. 119(g) 

and 133(b)(11) 

• Wild and Scenic Rivers Act, 16 U.S.C. 

1271–1287 

Wildlife 

• Anadromous Fish Conservation Act, 

16 U.S.C. 757a–757f 

• Bald and Golden Eagle Protection Act, 

as amended, 16 U.S.C. 668–668c 

• Fish and Wildlife Coordination Act, 

16 U.S.C. 661–667d 

• Magnuson-Stevens Fishery 

Conservation and Management Act 

of 1976, as amended, 16 U.S.C. 

1801–1891d 

• Marine Mammal Protection Act, 16 

U.S.C. 1361–1423h 

• Migratory Bird Treaty Act, 16 U.S.C. 

703–712 

• Section 7 of the Endangered Species 

Act of 1973, 16 U.S.C. 1536 

3.2.2 Any FHWA environmental 

review responsibility not explicitly 

listed above and assumed by 

DOT&PF shall remain the 

responsibility of FHWA unless the 

responsibility is added by written 

agreement of the parties through the 

amendment process established in 

Part 14 of this MOU and pursuant 

to 23 CFR 773.113(b). This 

provision shall not be interpreted to 

abrogate DOT&PF’s responsibilities 

to comply with the requirements of 

any Federal environmental laws 

that apply directly to DOT&PF 

independent of FHWA’s 

involvement (through Federal 

assistance or approval). 

3.2.3 The USDOT Secretary’s 

responsibilities for government-togovernment consultation with 

Indian tribes, as defined in 36 CFR 

800.16(m), are not assigned to or 

assumed by DOT&PF under this 

MOU. The FHWA remains 

responsible for government-togovernment consultation, including 

initiation of government-togovernment consultation consistent 

with Executive Order 13175— 

Consultation and Coordination with 


sradovich on DSK3GMQ082PROD with NOTICES
Federal Register / Vol. 82, No. 164 / Friday, August 25, 2017 / Notices 40629 

Indian Tribal Governments, unless 

otherwise agreed as described 

below. A notice from DOT&PF to an 

Indian tribe advising the tribe of a 

proposed activity is not considered 

‘‘government-to-government 

consultation’’ within the meaning 

of this MOU. If a project-related 

concern or issue is raised in a 

government-to-government 

consultation process with an Indian 

tribe, as defined in 36 CFR 

800.16(m), and is related to NEPA 

or another Federal law for which 

DOT&PF has assumed 

responsibilities under this MOU, 

and either the Indian tribe or 

FHWA determines that the issue or 

concern will not be satisfactorily 

resolved by DOT&PF, then FHWA 

may withdraw the assignment of all 

or part of the responsibilities for 

processing the project. In this case, 

the provisions of subpart 9.1 of this 

MOU concerning FHWA initiated 

withdrawal of an assigned project 

or part of an assigned project will 

apply. 

This MOU is not intended to abrogate, 

or prevent future entry into an 

agreement among DOT&PF, FHWA, 

and a tribe under which the tribe 

agrees to allow DOT&PF to consult 

for highway projects in Alaska. 

However, such agreements are 

administrative in nature and do not 

relieve FHWA of its legal 

responsibility for government-togovernment consultation. 

3.2.4 Nothing in this MOU shall be 

construed to permit DOT&PF’s 

assumption of the USDOT 

Secretary’s responsibilities for 

conformity determinations required 

by Section 176 of the Clean Air Act 

(42 U.S.C. 7506) or any 

responsibility under 23 U.S.C. 134 

or 135, or under 49 U.S.C. 5303 or 

5304. 

3.2.5 On the cover page of each 

biological evaluation or assessment, 

historic properties or cultural 

resources report, Section 4(f) 

evaluation, or other analyses 

prepared under the authority 

granted by this MOU, DOT&PF 

shall insert the following language 

in a way that is conspicuous to the 

reader or include in a CE project 

record: 

The environmental review, 

consultation, and other actions 

required by applicable Federal 

environmental laws for this project 

are being, or have been, carried out 

by DOT&PF pursuant to 23 U.S.C. 

327 and a Memorandum of 

Understanding dated [INSERT 

DATE] and executed by FHWA and 

DOT&PF. 

3.2.6 The DOT&PF shall disclose to 

the public and agencies, as part of 

agency outreach and public 

involvement procedures, the 

disclosure in subpart 3.2.5 of this 

MOU. 

3.2.7 The DOT&PF will continue to 

adhere to the original terms of a 

Biological Opinion (BO) issued by 

the U.S. Fish and Wildlife Service 

(USFWS) or National Marine 

Fisheries Service (NMFS) or both 

prior to the Effective Date of this 

MOU, so long as the original BO 

terms are not amended or revised. 

Any revisions or amendments to a 

BO made after the Effective Date of 

this MOU would be DOT&PF’s 

responsibility. The DOT&PF agrees 

to assume FHWA’s environmental 

review role and responsibilities as 

identified in existing interagency 

agreements among DOT&PF, 

USFWS, NMFS, and FHWA, and/or 

negotiate new agreements with 

USFWS and NMFS, if needed. The 

DOT&PF agrees to assume FHWA’s 

Endangered Species Act Section 7 

responsibilities of consultations 

(formal and informal) ongoing as of 

the Effective Date of this MOU. 

3.2.8 The DOT&PF will not make any 

determination that an action 

constitutes a constructive use of a 

publicly owned park, public 

recreation area, wildlife refuge, 

waterfowl refuge, or historic site 

under 49 U.S.C. 303/23 U.S.C. 138 

[Section 4(f)] without first 

consulting with FHWA and 

obtaining FHWA’s approval of such 

determination. 

3.3 Highway Projects 

3.3.1 Except as provided in subpart 

3.3.2 of this MOU or otherwise 

specified in this subpart, the 

assignments and assumptions of the 

USDOT Secretary’s responsibilities 

under subparts 3.1 and 3.2 of this 

MOU shall apply to the 

environmental review, consultation, 

or any other action pertaining to the 

environmental review or approval 

of the following classes of highway 

projects located within the State of 

Alaska. The definition of ‘‘highway 

project’’ is found at 23 CFR 773.103, 

and for purposes of this MOU, 

‘‘highway project’’ includes eligible 

preventative maintenance activities. 

The DOT&PF shall conduct any 

reevaluation required by 23 CFR 

771.129 for projects for which 

construction is not completed prior 

to the date of this MOU, in 

accordance with the provisions of 

this MOU. Prior to approving any 

CE determination, FONSl, final EIS, 

or final EIS/ROD, DOT&PF shall 

ensure and document that for any 

proposed project the design 

concept, scope, and funding are 

consistent with the current 

Transportation Improvement Plan 

(TIP), Regional Transportation Plan 

(RTP), or Metropolitan 

Transportation Plan (MTP), as 

applicable. 

A. All Class I, or EIS projects, that are 

funded by FHWA or require FHWA 

approvals. 

B. All Class II, or CE projects, that are 

funded by FHWA or require FHWA 

approvals. 

C. All Class III, or EA projects, that are 

funded by FHWA or require FHWA 

approvals. 

D. The DOT&PF will not assume the 

NEPA responsibilities of other 

Federal agencies. However, 

DOT&PF may use or adopt another 

Federal agency’s NEPA analysis or 

documents consistent with 40 CFR 

parts 1500—1508, current law, and 

USDOT and FHWA regulations, 

policies, and guidance. 

3.3.2 The following are specifically 

excluded from the list in subpart 

3.3.1 of highway projects: 

A. Any Federal Lands Highway 

projects authorized under 23 U.S.C. 

202, 203, and 204, unless such 

projects will be designed and 

constructed by DOT&PF. 

B. Any project that crosses or is 

adjacent to international 

boundaries. For purposes of this 

MOU, a project is considered 

‘‘adjacent to international 

boundaries’’ if it requires the 

issuance of a new, or the 

modification of an existing, 

Presidential Permit by the U.S. 

Department of State. 

C. Programs and projects advanced by 

direct recipients of Federal-aid 

Highway Program funds other than 

DOT&PF, including but not limited 

to: 

1. Recreational Trails program; 

2. TIGER Discretionary grants; 

3. Direct recipient tribal projects; and 

4. Shakwak program. 

D. Privately-funded or other agency 

funded projects requiring NEPA 

review as part of Interstate access 

approvals, unless such projects will 

be designed and constructed by 

DOT&PF. 

E. NEPA review for private requests 

for changes in controlled access, 

unless such projects will be 

designed and constructed by 

DOT&PF. 

F. This assignment does not include 


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the environmental review 

associated with the development 

and approval of a CE, EA, FONSI, 

Draft EIS, FEIS, or ROD for the 

following projects: 

1. 67698 & 67877/0922005 & 0922008 

Gravina Access; 

2. 71100/000S131 Juneau Access 

Improvements; and 

3. 53014/0212015 Sterling Highway: 

MP 45–60. 

The DOT&PF will be responsible for 

any additional environmental 

review of these projects after the 

expiration of the statute of 

limitations for these projects in 

accordance with 23 U.S.C. 139(l). 

3.4 Limitations 

3.4.1 As provided at 23 U.S.C. 327(e), 

DOT&PF shall be solely responsible 

and solely liable for carrying out, in 

lieu of and without further approval 

by FHWA, all of the responsibilities 

it has assumed under this MOU. 

3.4.2 As provided at 23 U.S.C. 

327(a)(2)(D), any highway project or 

responsibility of the USDOT 

Secretary that is not explicitly 

assumed by DOT&PF under subpart 

3.3.1 of this MOU remains the 

responsibility of the USDOT 

Secretary. 

PART 4. CERTIFICATIONS AND 

ACCEPTANCE OF JURISDICTION 

4.1 Certifications 

4.1.1 The DOT&PF hereby makes the 

following certifications: 

A. The DOT&PF has the legal 

authority to accept all the 

assumptions of responsibility 

identified in this MOU; 

B. The DOT&PF has the legal 

authority to take all actions 

necessary to carry out all of the 

responsibilities it has assumed 

under this MOU; 

C. The DOT&PF has the legal 

authority to execute this MOU; 

D. The State of Alaska has laws in 

effect that are comparable to the 

Freedom of Information Act (FOIA) 

at 5 U.S.C. 552, and those laws are 

found in the Alaska Public Records 

Act at Alaska Statutes Title 40, 

Chapter 25; and 

E. The Alaska Public Records Act 

provides that any decision 

regarding the public availability of 

a document under that Act is 

reviewable by an Alaska court of 

competent jurisdiction. 

4.2 State Commitment of Resources 

4.2.1 As required by 23 U.S.C. 

327(c)(3)(D), DOT&PF will maintain 

the financial resources necessary to 

carry out the responsibilities it is 

assuming. The DOT&PF asserts, and 

FHWA agrees, that the summary of 

financial resources contained in 

DOT&PF’s application, dated July 

12, 2016, appears to be adequate for 

this purpose. Should FHWA 

determine, after consultation with 

DOT&PF, that DOT&PF’s financial 

resources are inadequate to carry 

out the USDOT Secretary’s 

responsibilities, DOT&PF will take 

appropriate action to obtain the 

additional financial resources 

needed to carry out these 

responsibilities. If DOT&PF is 

unable to obtain the necessary 

additional financial resources, 

DOT&PF shall inform FHWA, and 

this MOU will be amended to 

assign only the responsibilities that 

are commensurate with DOT&PF’s 

financial resources. 

4.2.2 Similarly, DOT&PF has and will 

maintain adequate organizational 

and staff capability, including 

competent and qualified 

consultants where necessary or 

desirable, to effectively carry out 

the responsibilities it has assumed 

under this MOU. This includes, 

without limitation: 

A. Using appropriate environmental, 

technical, legal, and managerial 

expertise; 

B. Devoting adequate staff resources; 

and 

C. Demonstrating, in a consistent 

manner, the capacity to perform 

DOT&PF’s assumed responsibilities 

under this MOU and applicable 

Federal laws. 

Should FHWA determine, after 

consultation with DOT&PF, that 

DOT&PF’s organizational and staff 

capability is inadequate to carry out 

the USDOT Secretary’s 

responsibilities, DOT&PF will take 

appropriate action to obtain 

adequate organizational and staff 

capability to carry out these 

responsibilities. If DOT&PF is 

unable to obtain adequate 

organizational and staff capability, 

DOT&PF shall inform FHWA, and 

the MOU will be amended to assign 

only the responsibilities that are 

commensurate with DOT&PF’s 

available organizational and staff 

capability. Should DOT&PF choose 

to meet these requirements, in 

whole or in part, with consultant 

services, including outside counsel, 

DOT&PF shall maintain on its staff 

an adequate number of trained and 

qualified personnel, including 

counsel provided by the Alaska 

Department of Law, to oversee the 

consulting work. 

4.2.3 When carrying out the 

requirements of Section 106 of the 

National Historic Preservation Act 

(NHPA), as amended, DOT&PF staff 

(including consultants) shall 

comply with 36 CFR 800.2(a)(1). All 

actions that involve identification, 

evaluation, analysis, recording, 

treatment, monitoring, or 

disposition of historic properties, or 

that involve the reporting or 

documentation (including 36 CFR 

800.11) of such actions in the form 

of reports, forms, or other records, 

shall be carried out by or under the 

direct supervision of a person or 

persons who meet the Secretary of 

the Interior’s Professional 

Qualifications Standards (36 CFR 

part 61, Appendix A). The DOT&PF 

shall ensure that all documentation 

required under 36 CFR 800.11 is 

reviewed and approved by a staff 

member or consultant who meets 

the Professional Qualifications 

Standards. 

4.3 Federal Court Jurisdiction 

4.3.1 As required under 23 U.S.C. 

327(c)(3)(B), and authorized by 

Alaska Statute 44.23.020(g), 

DOT&PF hereby expressly consents, 

on behalf of the State of Alaska, to 

accept the jurisdiction of the 

Federal courts in cases that involve 

the compliance, discharge, and 

enforcement of any responsibility of 

the USDOT Secretary assumed by 

DOT&PF under Part 3 of this MOU. 

The consent to Federal court 

jurisdiction shall remain valid after 

termination of this MOU, or 

FHWA’s withdrawal of assignment 

of the USDOT Secretary’s 

responsibilities, for any decision or 

approval made by DOT&PF 

pursuant to an assumption of 

responsibility under this MOU. The 

DOT&PF understands and agrees 

that, in accordance with 23 U.S.C. 

327, the United States district court 

shall have exclusive jurisdiction 

over any civil action against the 

State of Alaska alleging a failure to 

carry out any responsibility 

assumed under this MOU, which 

constitutes a limited waiver of the 

State of Alaska’s immunity under 

the Eleventh Amendment to the 

U.S. Constitution. 

PART 5. APPLICABILITY OF FEDERAL 

LAW 

5.1 Procedural and Substantive 

Requirements 

5.1.1 As provided at 23 U.S.C. 

327(a)(2)(C), in assuming the 

USDOT Secretary’s responsibilities 


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under this MOU, DOT&PF shall be 

subject to the same procedural and 

substantive requirements that apply 

to the USDOT Secretary in carrying 

out these responsibilities. Such 

procedural and substantive 

requirements include, but are not 

limited to, Federal statutes and 

regulations; Executive Orders 

issued by the President of the 

United States; USDOT Orders; 

Council on Environmental Quality 

(CEQ) Regulations for Implementing 

the Procedural Provisions of NEPA 

(40 CFR parts 1500–1508); FHWA 

Orders, guidance, and policy issued 

by CEQ, Office of Management and 

Budget (OMB), USDOT, or FHWA 

(e.g. Guidance Establishing Metrics 

for the Permitting and 

Environmental Review of 

Infrastructure Projects); and any 

applicable Federal court decisions, 

and, subject to subpart 5.1.4 of this 

MOU, interagency agreements, and 

other similar documents that relate 

to the environmental review 

process, e.g., 2015 Red Book— 

Synchronizing Environmental 

Reviews for Transportation and 

Other Infrastructure Projects. 

Official USDOT and FHWA 

guidance and policies relating to 

environmental review are posted on 

FHWA’s Website, contained in 

FHWA Environmental Guidebook 

or published in the Federal 

Register, or sent to DOT&PF 

electronically or in hard copy. 

A. The DOT&PF has reviewed the 

2014 MOA between the U.S. Coast 

Guard (USCG) and FHWA and 

understands that by accepting 

FHWA’s NEPA responsibilities, it 

also agrees to perform FHWA’s 

obligations set forth in the MOU 

between the USDOT and the USCG 

and the MOA between FHWA and 

the USCG. 

B. The USDOT Secretary’s authorities 

under 23 U.S.C. 144(h) are not 

assigned under this MOU. 

5.1.2 The FHWA will use its best 

efforts to ensure that any new or 

revised Federal policy or guidance, 

which are final and applicable to 

FHWA’s responsibilities under 

NEPA and other laws that are 

assumed by DOT&PF under this 

MOU, are communicated to 

DOT&PF within 10 business days of 

issuance. Delivery may be 

accomplished by email, web 

posting (with email or mail to 

DOT&PF notifying of web posting), 

mail, or publication in the Federal 

Register (with email or mail to 

DOT&PF notifying of publication). 

If communicated to DOT&PF by 

email or mail, such material will be 

sent to DOT&PF’s Environmental 

Program Manager and the following 

address: NEPA@alaska.gov. When 

FHWA is considering changes to 

the Program or changes that may or 

will impact DOT&PF’s assumed 

responsibilities or resources, FHWA 

shall seek input from DOT&PF. In 

the event a new or revised FHWA 

policy or guidance is not made 

available to DOT&PF as described 

in this subpart, and if DOT&PF had 

no knowledge of such policy or 

guidance, then a failure by DOT&PF 

to comply with such Federal policy 

or guidance will not be a basis for 

termination of this MOU or a 

negative audit finding under this 

MOU. 

5.1.3 The DOT&PF will coordinate 

with Federal resource agencies 

concerning applicable laws, formal 

guidance, and policies that such 

other Federal agencies are 

responsible for administering with 

respect to DOT&PF’s highway 

projects and the assumption of 

responsibilities under this MOU. 

Within six (6) months of the Effective 

Date of this MOU, DOT&PF will 

work with FHWA and the resource 

agencies to modify existing 

interagency agreements. Such 

actions may include: 

A. Obtaining written consent to the 

continuation of an interagency 

agreement in its existing form, but 

with the substitution of DOT&PF for 

FHWA; or 

B. Amending an interagency 

agreement as needed so that the 

interagency agreement continues 

but that DOT&PF assumes FHWA’s 

responsibilities. 

If an affected agency does not agree to 

modify an interagency agreement 

then, to the extent permitted by 

applicable law and regulation, 

DOT&PF will carry out the assumed 

environmental review, consultation, 

or other related activity in 

accordance with applicable laws 

and regulations but without the 

benefit of the provisions of the 

interagency agreement. 

5.1.4 The DOT&PF may enter into an 

interagency agreement with a 

Federal, state, tribal, or local agency 

regarding appropriate proceses and 

procedures to carry out the projectspecific responsibilities assumed 

under this MOU. Although FHWA 

is not required to be a signatory, 

such an interagency agreement 

must conform with all provisions of 

this MOU, especially subpart 5.2.1. 

5.1.5 Upon termination of this MOU, 

DOT&PF and FHWA shall contact 

the Federal resource agency to 

determine whether any interagency 

agreement should be amended or 

reinstated as appropriate. 

5.2 Rulemaking 

5.2.1 As provided under 23 U.S.C. 

327(f), nothing in this MOU allows 

DOT&PF to assume any rulemaking 

authority of the USDOT Secretary. 

Additionally, DOT&PF may not 

establish policy and guidance on 

behalf of the USDOT Secretary or 

FHWA for highway projects 

covered in this MOU. The 

DOT&PF’s authority to establish 

State regulations, policy, and 

guidance concerning the State 

environmental review of State 

highway projects shall not 

supersede applicable Federal 

environmental review regulations, 

formal policy, or guidance 

established by or applicable to the 

USDOT Secretary or FHWA. 

5.2.2 Nothing in this MOU prevents 

DOT&PF from commenting on any 

Federal Register notice for any 

matter, including Notices of 

Proposed Rulemaking and other 

public notices. 

5.3 Effect of Assumption 

5.3.1 For purposes of carrying out the 

responsibilities assumed under this 

MOU, and subject to the limitations 

contained in 23 U.S.C. 327 and this 

MOU, DOT&PF shall be deemed to 

be acting as FHWA with respect to 

the environmental review, 

consultation, and other related 

actions required under those 

responsibilities. 

5.4 Other Federal Agencies 

5.4.1 As provided under 23 U.S.C. 

327(a)(2)(E), nothing in this MOU 

preempts or interferes with any 

power, jurisdiction, responsibility, 

or authority of any Federal agency 

other than USDOT (including 

FHWA), under applicable statutes 

and regulations with respect to a 

highway project. 

PART 6. LITIGATION 

6.1 Responsibility and Liability 

6.1.1 As provided in 23 U.S.C. 327(e), 

DOT&PF will be solely liable and 

solely responsible for carrying out 

the responsibilities assumed under 

this MOU, in lieu of and without 

further approval of the USDOT 

Secretary. The FHWA and USDOT 

will have no responsibility or 

liability for the performance of the 

responsibilities assumed by 

DOT&PF, including any decision or 


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approval made by DOT&PF while 

participating in the Program. 

6.2 Litigation 

6.2.1 Nothing in this MOU affects the 

United States Department of 

Justice’s (USDOJ) authority to 

litigate claims, including the 

authority to approve a settlement on 

behalf of the United States if either 

FHWA or another agency of the 

United States is named in such 

litigation or if the United States 

intervenes pursuant to 23 U.S.C. 

327(d)(3). In the event FHWA or 

any other Federal agency is named 

in litigation related to matters under 

this MOU or the United States 

intervenes in the litigation, 

DOT&PF will coordinate with 

FHWA and any USDOJ or Federal 

agency attorneys in the defense of 

that action. 

6.2.2 The DOT&PF shall defend all 

claims brought in connection with 

its discharge of any responsibility 

assumed under this MOU. In the 

event of litigation, DOT&PF will 

provide qualified and competent 

legal counsel, including outside 

counsel if necessary. The DOT&PF 

will provide the defense at its own 

expense, subject to 23 U.S.C. 

327(a)(2)(G) concerning Federal-aid 

participation in attorney’s fees for 

DOT&PF’s counsel. The DOT&PF 

will be responsible for opposing 

party’s attorney’s fees and court 

costs if a court awards those costs 

to an opposing party, or in the event 

those costs are part of a settlement 

agreement, subject to appropriation 

by the Alaska legislature and 

subject to allocation of 

responsibility between DOT&PF 

and any co-defendant Federal 

agency. 

6.2.3 The DOT&PF will notify the 

FHWA’s Alaska Division Office and 

DOJ’s Assistant Attorney General 

for the Environment and Natural 

Resources Division, within seven 

(7) calendar days of DOT&PF’s 

receipt of service of process of any 

complaint, concerning its discharge 

of any responsibility assumed 

under this MOU. The DOT&PF’s 

notification to the FHWA and 

USDOJ shall be made prior to its 

response to the complaint. In 

addition, DOT&PF shall notify the 

FHWA’s Alaska Division Office 

within seven (7) calendar days of 

receipt of any notice of intent to sue 

concerning its discharge of any 

responsibility assumed under this 

MOU. 

6.2.4 The DOT&PF will provide the 

FHWA’s Alaska Division Office and 

USDOJ copies of any motions, 

pleadings, briefs, and other such 

documents filed in any case 

concerning its discharge of any 

responsibility assumed under this 

MOU. The DOT&PF will provide 

such copies to the FHWA and 

USDOJ within seven (7) calendar 

days of receipt of service of any 

document or, in the case of any 

documents filed by or on behalf of 

DOT&PF, within seven (7) calendar 

days of the date of filing. 

6.2.5 The DOT&PF will notify the 

FHWA’s Alaska Division Office and 

USDOJ prior to settling any lawsuit, 

in whole or in part, and shall 

provide the FHWA and USDOJ with 

a reasonable amount of time of at 

least ten (10) calendar days, to be 

extended, if feasible based on the 

context of the lawsuit, up to a 

maximum of thirty (30) total 

calendar days, to review and 

comment on the proposed 

settlement. The DOT&PF will not 

execute any settlement agreement 

until: (1) FHWA and USDOJ have 

provided comments on the 

proposed settlement; (2) indicated 

that they will not provide 

comments on the proposed 

settlement; or (3) the review period 

has expired, whichever occurs first. 

6.2.6 Within seven (7) calendar days of 

receipt by DOT&PF, DOT&PF will 

provide notice to FHWA’s Division 

Office and USDOJ of any court 

decision on the merits, judgment, 

and notice of appeal arising out of 

or relating to the responsibilities 

DOT&PF has assumed under this 

MOU. The DOT&PF shall notify 

FHWA’s Alaska Division Office and 

USDOJ within five (5) days of filing 

a notice of appeal of a court 

decision. The DOT&PF shall confer 

with FHWA and USDOJ regarding 

the appeal at least forty-five (45) 

days before filing its initial brief on 

the merits of the appeal. 

6.2.7 The DOT&PF’s notifications to 

FHWA and USDOJ in subparts 

6.2.3, 6.2.4, 6.2.5, and 6.2.6 shall be 

made by electronic mail to FHWA_

assignment_lit@dot.gov, and 

NRSDOT.enrd@usdoj.gov, unless 

otherwise specified by FHWA and 

USDOJ. For copies of motions, 

pleadings, briefs, and other 

documents filed in a case, as 

identified in subpart 6.2.4, DOT&PF 

may opt to either send the materials 

to the email addresses identified 

above, send hardcopies to the mail 

address below, or add to the 

distribution list in the court’s 

electronic filing system (e.g., 

PACER) the following two email 

addresses: FHWA_assignment_lit@

dot.gov and efile_nrs.enrd@

usdoj.gov. The FHWA and USDOJ’s 

comments under subpart 6.2.5 and 

6.2.6 shall be made by electronic 

mail to NEPA@alaska.gov unless 

otherwise specified by DOT&PF. In 

the event that regular mail is 

determined necessary, mail should 

be sent by overnight mail service to: 

For USDOJ: Assistant Attorney 

General for the Environment and 

Natural Resources Division at 950 

Pennsylvania Avenue NW., Room 

2143, Washington, DC 20530. 

For FHWA: Division Administrator, 

Federal Highway Administration— 

Alaska Division, P.O. Box 21648, 

709 West 9th Street, Room 851, 

Juneau, AK 99802–1648. 

For DOT&PF: Statewide 

Environmental Program Manager, 

Alaska Department of 

Transportation and Public 

Facilities, 3132 Channel Drive, P.O. 

Box 112500, Juneau, AK, 99811– 

2500. 

6.3 Conflict Resolution 

6.3.1 In discharging any of the USDOT 

Secretary’s responsibilities under 

this MOU, DOT&PF agrees to 

comply with any applicable 

requirements of USDOT and FHWA 

statute, regulation, guidance, or 

policy regarding conflict resolution. 

This includes compliance with the 

USDOT Secretary’s responsibilities 

for issue resolution under 23 U.S.C. 

139(h) with the exception of the 

USDOT Secretary’s responsibilities 

under 23 U.S.C. 139(h)(7) regarding 

financial penalties. 

6.3.2 The DOT&PF agrees to follow 40 

CFR part 1504 in the event of predecision referrals to CEQ for 

Federal actions determined to be 

environmentally unsatisfactory. The 

DOT&PF also agrees to coordinate 

and work with CEQ on matters 

brought to CEQ with regards to the 

environmental review 

responsibilities for Federal highway 

projects DOT&PF has assumed 

under this MOU. 

PART 7. INVOLVEMENT WITH 

OTHER AGENCIES 

7.1 Coordination 

7.1.1 The DOT&PF agrees to seek early 

and appropriate coordination with 

all applicable Federal, State, and 

local agencies in carrying out any of 

the responsibilities for highway 

projects assumed under this MOU. 

7.2 Processes and Procedures 

7.2.1 The DOT&PF will ensure that it 

has appropriate processes and 


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procedures in place that provide for 

proactive and timely consultation, 

coordination, and communication 

with applicable Federal agencies in 

order to carry out the 

responsibilities assumed under this 

MOU, including the submission of 

all EISs together with comments 

and responses to the Environmental 

Protection Agency (EPA) as 

required by 40 CFR 1506.9 and for 

EPA’s review as required by section 

309 of the Clean Air Act, 42 U.S.C. 

7609. These processes and 

procedures shall be formally 

documented. Documentation may 

be a formally executed interagency 

agreement or other format as 

appropriate. 

PART 8. INVOLVEMENT WITH FHWA 

8.1 Generally 

8.1.1 In discharging any of the USDOT 

Secretary’s and FHWA’s 

responsibilities under this MOU, 

DOT&PF and FHWA agree to work 

cooperatively to resolve substantive 

issues regarding the 

implementation or interpretation of 

this MOU. 

8.1.2 Except as specifically provided 

otherwise in this MOU, FHWA will 

not provide project-level assistance 

to DOT&PF in carrying out the 

responsibilities it has assumed 

under this MOU. Project-level 

assistance includes advice, 

consultation, or review of draft 

documents. However, project-level 

assistance does not include: process 

or Program-level assistance as 

described in subpart 8.1.5 of this 

MOU, including discussions 

concerning issues addressed in 

prior projects, interpretations of 

applicable law contained in Title 23 

U.S.C. or Title 49 U.S.C., 

interpretations of any FHWA or 

USDOT regulation, or 

interpretations of FHWA or USDOT 

policies or guidance. 

8.1.3 The FHWA will not intervene, 

broker, act as intermediary, or 

otherwise be involved in any issue 

involving DOT&PF’s consultation or 

coordination with other Federal 

resource agencies with respect to 

DOT&PF’s discharge of any of the 

responsibilities assumed under this 

MOU for any particular highway 

project. However, FHWA may 

attend meetings between DOT&PF 

and other Federal agencies. Further, 

FHWA may submit comments to 

DOT&PF and the other Federal 

agency in the following 

extraordinary circumstances: 

A. FHWA reasonably believes that 

DOT&PF is not in compliance with 

this MOU; 

B. FHWA determines that an issue 

between DOT&PF and the other 

Federal agency concerns an 

emerging national policy issue 

under consideration by the USDOT; 

or 

C. upon request by DOT&PF 

Environmental Program Manager, 

DOT&PF Commissioner, DOT&PF 

Deputy Commissioner, or DOT&PF 

Chief Engineer, or the Federal 

agency, with agreement by the 

FHWA. 

The FHWA will notify both DOT&PF 

and the relevant Federal agency 

prior to attending any meetings 

between DOT&PF and such other 

Federal agency. 

8.1.4 Other Federal agencies may raise 

concerns regarding compliance 

with this MOU by DOT&PF and 

may communicate these concerns to 

FHWA. The FHWA will review the 

concerns and any information 

provided to FHWA by such other 

Federal agency. If FHWA 

determines the concern has merit, 

FHWA shall inform the DOT&PF 

Environmental Program Manager. 

The DOT&PF will review the 

concerns and any information 

provided to FHWA, and work with 

the other Federal agency to resolve 

the concern. If the concern remains 

unresolved, FHWA will notify 

DOT&PF and will work with both 

DOT&PF and the other Federal 

agency to resolve the issue and, if 

necessary, take appropriate action 

to ensure compliance with this 

MOU. 

8.1.5 At DOT&PF’s request, FHWA 

may assist DOT&PF in evaluating 

its environmental program and 

developing or modifying any of its 

processes or procedures to carry out 

the responsibilities it has assumed 

under this MOU, including, but not 

limited to, emerging national policy 

issues and those processes and 

procedures concerning DOT&PF’s 

consultation, coordination, and 

communication with other Federal 

agencies. 

8.1.6 Communications between 

DOT&PF and FHWA regarding the 

administration of the 

responsibilities assigned and 

assumed under this MOU, and 

other process and Program-level 

communications described in 

subparts 8.1.2 and 8.1.5 of this 

MOU, are normally considered 

intra-agency communications for 

the purpose of deliberative process 

privileges under the Freedom of 

Information Act and the Alaska 

Public Records Act. The DOT&PF 

and FHWA shall promptly notify 

each other of requests for public 

records regarding the 

administration of the Program in 

Alaska. 

8.1.7 For active projects where 

DOT&PF is assuming 

responsibilities from FHWA under 

this MOU, FHWA shall allow 

DOT&PF access to its project files 

and arrange for copies to be 

provided upon request by DOT&PF. 

8.1.8 The DOT&PF’s obligations and 

responsibilities under 23 CFR 1.5 

are not altered in any way by 

executing this MOU. 

8.2 MOU Monitoring and Oversight 

8.2.1 FHWA will provide necessary 

and appropriate monitoring and 

oversight of DOT&PF’s compliance 

with this MOU. The FHWA’s 

monitoring and oversight activities 

in years one through four of this 

MOU’s term will primarily consist 

of an annual audit as provided at 23 

U.S.C. 327(g) and Part 11 of this 

MOU, and evaluating attainment of 

the performance measures listed in 

Part 10 of this MOU. After the 

fourth year of DOT&PF’s 

participation in the Program, 

FHWA will monitor DOT&PF’s 

compliance with the MOU 

including the provision by DOT&PF 

of financial resources to carry out 

the MOU. The FHWA’s monitoring 

and oversight may also include 

submitting requests for information 

to DOT&PF and other relevant 

Federal agencies, verifying 

DOT&PF’s financial and personnel 

resources dedicated to carrying out 

the responsibilities assumed, and 

reviewing documents and other 

information. 

8.2.2 Pursuant to 23 U.S.C. 327(c)(4), 

DOT&PF is responsible for 

providing FHWA any information 

FHWA reasonably considers 

necessary to ensure that DOT&PF is 

adequately carrying out the 

responsibilities assigned. When 

requesting information subject to 

section 327(c)(4), FHWA will 

provide the request to DOT&PF in 

writing, and the request will 

identify with reasonable specificity 

the information required. FHWA 

will also indicate in the request a 

deadline for the information to be 

provided. DOT&PF will, in good 

faith, work to ensure the 

information requested is provided 

by the deadline. DOT&PF’s 

response to an information request 

under this paragraph will include, 

where appropriate, making relevant 


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employees and consultants 

available at their work location 

(including in-person meeting, 

teleconference, videoconference or 

other electronic means as may be 

available). 

8.2.3 The DOT&PF shall make project 

files and general administrative 

files pertaining to the discharge of 

the responsibilities it has assumed 

under this MOU reasonably 

available for inspection by FHWA 

at the files’ locations upon 

reasonable notice, which is not less 

than five business days. These files 

shall include, but are not limited to, 

letters and comments received from 

governmental agencies, the public, 

and others with respect to 

DOT&PF’s discharge of the 

responsibilities assumed under this 

MOU. The DOT&PF will maintain 

privileged communications in 

separate files and, at the request of 

FHWA, will provide those 

communications to FHWA’s 

counsel for the purposes of FHWA’s 

review and monitoring of the 

Program and to preserve DOT&PF’s 

privileges in those communications. 

8.2.4 In carrying out the 

responsibilities assumed under this 

MOU, DOT&PF agrees to carry out 

regular quality control and quality 

assurance (QA/QC) reviews to 

ensure that the assumed 

responsibilities are being conducted 

in accordance with applicable law 

and this MOU. At a minimum, 

DOT&PF’s QA/QC process will 

include the review and monitoring 

of its processes and performance 

relating to project decisions, 

completion of environmental 

analysis, project file 

documentation, checking for errors 

and omissions, and legal sufficiency 

reviews, and taking appropriate 

corrective action as needed. Within 

three (3) months of the Effective 

Date of this MOU, DOT&PF shall 

finalize a QA/QC process that 

satisfies the requirements in this 

subpart. In developing and 

implementing the QA/QC process, 

DOT&PF shall consult with the 

FHWA Alaska Division Office. 

DOT&PF agrees cooperate with 

FHWA to consider 

recommendations FHWA may have 

made with respect to its QA/QC 

process. 

8.2.5 The DOT&PF shall perform 

annual self-assessments of its QA/ 

QC process and performance to 

determine if its process is working 

as intended. If any process areas are 

identified as needing improvement, 

DOT&PF will take appropriate and 

timely corrective actions to address 

such areas. At least one month prior 

to the date of a scheduled FHWA 

audit DOT&PF will transmit a 

summary of its most recent selfassessment to FHWA Alaska 

Division Office. The summary will 

include a description of the scope 

of the self-assessment conducted 

and the areas reviewed, a 

description of the process followed 

in conducting the self-assessment, a 

list of the areas identified as 

needing improvement, any 

corrective actions that have been or 

will be implemented and a 

statement from DOT&PF’s 

Environmental Program Manager 

concerning whether the processes 

are ensuring that the 

responsibilities DOT&PF has 

assumed under this MOU are being 

carried out in accordance with this 

MOU and all applicable Federal 

laws and policies, and a summary 

of DOT&PF’s progress toward 

attaining the performance measures 

listed in Part 10 of this MOU. 

8.2.6 Upon the Effective Date of this 

MOU, DOT&PF will maintain a list 

of NEPA approvals and decisions 

(CE, EA, FONSI, DEIS, FEIS, FEIS/ 

ROD, ROD) and Section 4(f) 

approvals it makes under this MOU. 

The DOT&PF will provide an 

updated list to FHWA every six (6) 

months. 

8.3 Records Retention 

8.3.1 DOT&PF will retain project files, 

and files pertaining to the discharge 

of its responsibilities under this 

MOU, in accordance with the 

DOT&PF Statewide Design and 

Engineering Services Division, State 

of Alaska Records Retention and 

Disposition Schedule, which meets 

or exceeds requirements established 

in FHWA Records Disposition 

Manual (Field Offices) Chapter 4, 

FHWA Order No. 1324.1 B, issued 

July 29, 2013 or in accordance with 

any subsequent order that 

supersedes or replaces Order No. 

1324.1 B. In accordance with 

DOT&PF Records Retention and 

Disposition Schedule 25–539.2, 

records will be retained for six (6) 

fiscal years after the completion of 

the project, reporting requirement 

or other applicable activity. Capital 

project files of historical 

significance (NEPA decision 

documents including CE, EA and 

EIS) will be retained permanently. 

To the extent that FHWA’s Records 

Disposition Manual is amended to 

provide for a longer retention 

period, DOT&PF will meet such 

requirement. 

DOT&PF will permanently store records 

for Significant Transportation 

Projects as they are defined in 

FHWA Order No. 1324.1B. 

8.3.2 For the following record types 

DOT&PF will ensure that the 

following retention periods are 

maintained in the following 

manner: 

A. FHWA–DOT&PF Environment 

Correspondence Files: 

Correspondence between FHWA 

and DOT&PF relative to the 

interpretation, administration, and 

execution of this MOU and the 

environmental aspects of the 

Federal-aid Highway Program, as 

established in 8.1.2 and 8.1.5, shall 

be maintained by DOT&PF for a 

period of six (6) years after the 

resolution of the particular issue or 

after the guidance has been 

superseded. After six (6) years 

DOT&PF may follow the State 

records disposition process for 

these records. 

B. National Environmental Policy Act 

(NEPA) and Related Documents: 

For a period of 8 years after 

approval of the final construction 

voucher DOT&PF shall maintain 

Final NEPA Documents (Draft EISs, 

Final EISs, Supplemental EISs, 

RODs, EAs, FONSIs, CE 

documentation and 

determinations), Supporting 

Materials (documentation 

supporting the Sec. 139 

environmental review process [i.e., 

coordination plans that include 

project schedules, evidence for 

opportunities for public/agency 

input in purpose and need, 

alternatives], scoping, public and 

agency comments; meeting minutes; 

NOI, Public Involvement Plans, 

public meeting summaries, public 

hearing certifications and 

transcripts, mitigation reports/ 

tracking, technical reports; 

correspondence; studies and 

reports; references; errata sheets; 

and reevaluation documents); 

NEPA Reference Documents 

(written statements and supporting 

documents needed for reference); 

and official documents and 

correspondence related to reviews 

under other environmental 

requirements (e.g., ESA, CWA, 

Section 4(f), Section 106). After 8 

years DOT&PF may follow the State 

records disposition process for 

these records except that DOT&PF 

will permanently store the above 

referenced records for Significant 

Transportation Projects as they are 


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defined in Order No. 1224.1B. 

Drafts and working copies of paper or 

electronic documents should be 

kept until the final version of a 

document is completed. For long or 

complex documents, several earlier 

drafts and the current draft may be 

retained to ensure document 

integrity until the final draft is 

approved. Then, previous revisions 

may be erased or destroyed and 

only the final text and the requisite 

back-up copies will be kept as 

identified above. 

C. Environmental Impact 

Statements—Other Agencies: Files 

containing reviews and comments 

furnished by DOT&PF to other 

Federal agencies following reviews 

of an EIS for which another Federal 

agency is the lead agency shall be 

maintained by DOT&PF for a period 

of 5 years. After 5 years, DOT&PF 

may destroy these files when no 

longer needed. 

D. Noise Barriers: DOT&PF agrees to 

maintain the necessary information 

to comply with 23 CFR 772.13(f) 

regarding noise abatement measures 

reporting. DOT&PF shall maintain 

this information for a period of 4 

years after the end of the Federal 

fiscal year in which the project file 

is closed. 

8.3.3 In the case of a conflict between 

FHWA Records Disposition 

Manual, FHWA Order 1324.1B, 

DOT&PF Records Management 

Policy, and Retention and Disposal 

Schedule the more stringent 

retention requirements shall 

control. 

8.3.4 Nothing contained in this MOU 

is intended to relieve DOT&PF of its 

recordkeeping responsibilities 

under 2 CFR 200.333–200.337 

(Record Retention and Access) or 

other applicable laws. 

8.4 Federal Register 

8.4.1 For any documents that are 

required to be published in the 

Federal Register, such as the Notice 

of Intent under 23 CFR 771.123(a) 

and Notice of Final Agency Action 

under 23 U.S.C. 139(l)(2), DOT&PF 

shall transmit such document to 

FHWA’s Alaska Division Office, 

with a request for publication in the 

Federal Register on behalf of 

DOT&PF. The FHWA’s Alaska 

Division Office will submit such 

document to the Federal Register 

within five (5) calendar days of 

receipt of DOT&PF’s request for 

publication in the Federal Register. 

If requested, DOT&PF shall 

reimburse FHWA for costs 

associated with publishing such 

documents in the Federal Register 

(excluding FHWA’s overhead). 

8.5 Participation in Resource Agency 

Reports 

8.5.1 DOT&PF agrees to provide data 

and information requested by 

FHWA and resource agencies for 

the preparation of national reports 

to the extent that the information 

relates to determinations, findings, 

and proceedings associated with 

projects processed under this MOU. 

Such reports include but are not 

limited to: 

A. Information on the completion of 

and duration to complete all NEPA 

classes of action (EIS, EA, CE); 

B. Archeology Reports requested by 

the National Park Service (NPS); 

C. Endangered Species Act 

Expenditure Reports requested by 

the USFWS and NMFS; 

D. Project schedules and other project 

information for nationwide 

infrastructure transparency 

initiatives 

E. Project status and information for 

EAs and EISs for use on the 

searchable website maintained 

under section 41003(b) of the FAST 

Act [Fixing America’s Surface 

Transportation Act, 42 U.S.C. 

4370m–2(b) and 23 U.S.C. 139(o)] 

(Federal Permitting Dashboard) to 

be submitted in accordance with 

current and any future reporting 

standard issued by U.S. DOT 

pursuant to such provisions; 

F. NEPA Litigation Reports requested 

by CEQ; and 

G. Environmental Conflict Resolution 

reports requested by the Office of 

Management and Budget and CEQ. 

8.6 Conformity Determinations 

8.6.1 Pursuant to 23 U.S.C. 

327(a)(2)(B)(iv)(II), for any project 

requiring a project-level conformity 

determination under the Clean Air 

Act and its implementing 

regulations, FHWA’s Alaska 

Division Office will document the 

project level conformity 

determination within a reasonable 

timeframe. The FHWA’s Alaska 

Division Office will restrict its 

review to only that data, analyses, 

applicable comments and 

responses, and other relevant 

documentation that enable FHWA 

to make the project-level conformity 

determination. 

8.7 Certification of NEPA Compliance 

8.7.1 For projects funded by FHWA, 

DOT&PF shall ensure that a 

certification is included with each 

NEPA approval specifying that 

DOT&PF has fully carried out all 

responsibilities assumed under this 

MOU in accordance with this MOU 

and all applicable Federal laws, 

regulations, Executive Orders, and 

policies. DOT&PF shall ensure that 

this certification is made prior to 

the execution of any future Federalaid approval or action. The DOTPF 

shall include the certification in its 

request for authority to proceed to 

final design, right-of-way 

acquisition, or construction. The 

DOT&PF agrees to provide FHWA 

access to NEPA approvals and 

certifications. 

8.8 Enforcement 

8.8.1 Should FHWA determine that 

DOT&PF is not in compliance with 

this MOU, then FHWA shall take 

appropriate action to ensure 

DOT&PF’s compliance, including 

appropriate remedies provided at 

23 CFR 1.36 for violations of or 

failure to comply with Federal law 

or regulations at 23 CFR with 

respect to a project, withdrawing 

assignment of any responsibilities 

that have been assumed as provided 

in Part 9 of this MOU, or 

terminating DOT&PF’s participation 

in the Program as provided in Part 

13 of this MOU. 

PART 9. WITHDRAWAL OF 

ASSIGNED RESPONSIBILITIES 

9.1 FHWA-Initiated Withdrawal of 

Assigned Projects 

9.1.1 The FHWA may, at any time, 

withdraw the assignment of all or 

part of the USDOT Secretary’s 

responsibilities that have been 

assumed by DOT&PF under this 

MOU for any highway project or 

highway projects upon FHWA’s 

determination that: 

A. With respect to such project or 

projects, DOT&PF is not in 

compliance with a material term of 

this MOU or applicable Federal 

laws or policies, and DOT&PF has 

not taken sufficient corrective 

action to the satisfaction of FHWA; 

B. The highway project or highway 

projects involve significant or 

unique national policy interests for 

which DOT&PF’s assumption of the 

USDOT Secretary’s responsibilities 

would be inappropriate; or 

C. DOT&PF cannot satisfactorily 

resolve an issue or concern raised 

in government-to-government 

consultation process, as provided in 

subpart 3.2.3. 

9.1.2 Upon the FHWA’s determination 

to withdraw assignment of the 

USDOT Secretary’s responsibilities 


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under subpart 9.1.1, FHWA will 

informally notify DOT&PF of 

FHWA’s determination. After 

informally notifying DOT&PF of its 

determination, FHWA will provide 

DOT&PF written notice of its 

determination including the reasons 

for its determination. Upon receipt 

of this notice, DOT&PF may submit 

any comments that would resolve 

the compliance concern or 

objections to FHWA within 30 

calendar days, unless FHWA agrees 

to an extended period of time. Upon 

receipt of DOT&PF’s comments or 

objections, FHWA will make a final 

determination within 30 calendar 

days, unless extended by FHWA for 

cause, and notify DOT&PF of its 

decision. In making its 

determination, FHWA will consider 

DOT&PF’s comments or objections, 

the effect the withdrawal of 

assignment will have on the 

Program, the amount of disruption 

to the project concerned, the effect 

on other projects, confusion the 

withdrawal of assignment may 

cause to the public, the potential 

burden to other Federal agencies, 

and the overall public interest. 

9.1.3 The FHWA shall withdraw 

assignment of the responsibilities 

DOT&PF has assumed for any 

highway project when the preferred 

alternative that is identified in the 

CEs, EA, or FEIS is a highway 

project or part of a program that is 

specifically excluded in subpart 

3.3.2. In such case, subpart 9.1.2 of 

this MOU shall not apply. 

9.2 DOT&PF-Initiated Withdrawal of 

Assignment of Projects 

9.2.1 The DOT&PF may, at any time, 

provide FHWA with notice of its 

intent to withdraw a highway 

project assumed under this MOU. 

9.2.2 Upon DOT&PF’s decision to 

request FHWA withdraw the 

assignment of the USDOT 

Secretary’s responsibilities under 

subpart 9.2.1, DOT&PF shall 

informally notify FHWA of its 

desire for FHWA to withdraw 

assignment of its responsibilities. 

After informally notifying FHWA of 

its desire, DOT&PF will provide 

FHWA written notice of its desire, 

including the reasons for wanting 

FHWA to withdraw assignment of 

the responsibilities. Upon receipt of 

this notice, FHWA will have 30 

calendar days, unless extended by 

FHWA for cause, to determine 

whether it will withdraw 

assignment of the responsibilities 

requested. In making its 

determination, FHWA will consider 

the reasons DOT&PF desires FHWA 

to withdraw assignment of the 

responsibilities, the effect the 

withdrawal of assignment will have 

on the Program, amount of 

disruption to the project concerned, 

the effect on other projects, 

confusion the withdrawal of 

assignment may cause to the public, 

the potential burden to other 

Federal agencies, and the overall 

public interest. 

PART 10. PERFORMANCE MEASURES 

10.1 General 

10.1.1 Both FHWA and DOT&PF have 

determined it is desirable to 

mutually establish a set of 

performance measures to consider 

DOT&PF’s administration of the 

responsibilities assumed under this 

MOU. 

10.1.2 The DOT&PF’s attainment of 

the performance measures indicated 

in this part of the MOU will be 

considered by FHWA during audits, 

as required by 23 U.S.C. 327(g). 

10.1.3 The DOT&PF shall collect and 

maintain all necessary and 

appropriate data related to the 

attainment of performance 

measures. In collecting this data, 

DOT&PF shall monitor its progress 

toward meeting the performance 

measures and include its progress 

in the self-assessment summary 

described in subpart 8.2.5 of this 

MOU. 

10.2 Performance Measures 

10.2.1 The performance measures 

applicable to DOT&PF in carrying 

out the responsibilities it has 

assumed under this MOU are as 

follows: 

A. Compliance with NEPA, FHWA 

NEPA regulations, and other 

Federal environmental statutes and 

regulations: 

i. Maintain documented compliance 

with procedures and processes set 

forth in this MOU for the 

environmental responsibilities 

assumed under the Program. 

ii. Maintain documented compliance 

with requirements of all applicable 

Federal statutes and regulations for 

which responsibility is assumed 

(e.g., Section 106 of the NHPA, 

Section 7 of the ESA, etc.). 

B. QA/QC for NEPA decisions: 

i. Maintain and apply internal quality 

control and assurance measures and 

processes, including a record of: 

a. Legal sufficiency determinations 

made by counsel; this shall include 

the legal sufficiency reviews of 

Notices of Intent and Notices of 

Final Agency Action as required by 

law, policy, or guidance; 

b. Compliance with FHWA’s and 

DOT&PF’s environmental document 

content standards and procedures, 

including those related to QA/QC; 

and, 

c. Completeness and adequacy of 

documentation of project records 

for projects done under the Program 

C. Relationships with agencies and 

the general public: 

i. Assesses change in communication 

among DOT&PF, Federal and State 

resource agencies, and the public 

resulting from assumption of 

responsibilities under this MOU. 

ii. Maintain effective responsiveness 

to substantive comments received 

from the public, agencies, and 

interest groups on NEPA documents 

and environmental concerns. 

iii. Maintain effective NEPA conflict 

resolution processes whenever 

appropriate. 

D. Increased efficiency and timeliness 

in completion of the NEPA process: 

i. Compare time of completion of 

environmental document approvals 

before and after assumption of 

responsibilities under this MOU. 

ii. Compare time to completion for 

key interagency consultation 

formerly requiring FHWA 

participation (e.g., Section 7 

biological opinions, Section 106 

resolution of adverse effects) before 

and after assumption of 

responsibilities under this MOU. 

PART 11. AUDITS 

11.1 General 

11.1.1 As required at 23 U.S.C. 327(g), 

FHWA will conduct audits of 

DOT&PF’s discharge of the 

responsibilities it has assumed 

under this MOU. During the first 

four (4) years, audits will be the 

primary mechanism used by FHWA 

to oversee DOT&PF’s compliance 

with this MOU, ensure compliance 

with applicable Federal laws and 

policies, evaluate DOT&PF’s 

progress toward achieving the 

performance measures identified in 

Part 10, and collect information 

needed for the USDOT Secretary’s 

annual report to Congress. 

Pursuant to 23 U.S.C. 327(g)(3), each 

audit carried out under this MOU 

shall be carried out by an audit 

team, consisting of members 

designated by FHWA in 

consultation with DOT&PF. Such 

consultation shall include a 

reasonable opportunity for DOT&PF 

to review and provide comments on 

the proposed members of the audit 

team. 


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11.1.2 Pursuant to 23 U.S.C. 327(c)(4), 

DOT&PF is responsible for 

providing FHWA any information 

FHWA reasonably considers 

necessary to ensure that DOT&PF is 

adequately carrying out the 

responsibilities assigned. The 

DOT&PF will make documents and 

records available for review by 

FHWA in conducting audits and 

shall provide FHWA with copies of 

any such documents and records as 

may be requested by FHWA 

pursuant to the pursuant to the 

process identified in subpart 8.2.3. 

In general, all documents and 

records will be made available to 

FHWA at their normal place of 

repository. However, DOT&PF will 

work with FHWA to provide 

documents through email, CD– 

ROM, mail, or facsimile to the 

extent it does not create an undue 

burden. 

11.1.3 The DOT&PF agrees to 

cooperate with FHWA in 

conducting audits, including 

providing access to all necessary 

information, making all employees 

available to answer questions 

(including consultants hired for the 

purpose of carrying out the USDOT 

Secretary’s responsibilities), and 

providing all requested information 

(including making employees 

available) to FHWA in a timely 

manner. Employees will be made 

available either in-person at their 

normal place of business or by 

telephone, at the discretion of 

FHWA. 

11.1.4 The DOT&PF and FHWA 

Alaska Division Office will each 

designate an audit coordinator who 

will be responsible for coordinating 

audit schedules, requests for 

information, and arranging audit 

meetings. 

11.1.5 Such FHWA audits will 

include, but not be limited to, 

consideration of DOT&PF’s 

technical competency and 

organizational capacity, adequacy 

of the financial resources 

committed by DOT&PF to 

administer the responsibilities 

assumed, quality control and 

quality assurance process, 

attainment of performance 

measures, compliance with this 

MOU’s requirements, and 

compliance with applicable Federal 

laws and policies in administering 

the responsibilities assumed. 

11.2 Scheduling 

11.2.1 As provided at 23 U.S.C. 327(g), 

FHWA will conduct an annual 

audit during each of the first (4) 

four years after the Effective Date. 

After the fourth year of DOT&PF’s 

participation in the Program, 

FHWA will monitor DOT&PF’s 

compliance with the MOU, 

including the provision by DOT&PF 

of financial resources to carry out 

the MOU, but will not conduct 

additional audits under this Part. In 

the event the frequency of the 

audits is modified by amendments 

to 23 U.S.C. 327(g), the frequency 

established by the statutory 

amendments will control and apply 

to this subpart. 

11.2.2 For each annual audit, the 

designated audit coordinators for 

FHWA and DOT&PF will work to 

establish a general audit schedule 

within 180 days of the Effective 

Date or anniversary date of this 

MOU. The general audit schedule 

will include the dates that FHWA 

will conduct the audit. To the 

maximum extent practicable, the 

general audit schedule will identify 

all employees (including 

consultants) and documents and 

other records that DOT&PF will 

make available, as requested by 

FHWA in support of the audit. With 

respect to documents and other 

records, FHWA agrees to be as 

specific as possible, although a 

general description of the types of 

documents will be acceptable. The 

general schedule will include the 

time period for completing an 

annual audit from initiation to 

completion (including public 

comment and responses to those 

comments), which shall not exceed 

180 calendar days, unless modified 

by amendments to 23 U.S.C. 327(g). 

11.2.3 The DOT&PF’s audit 

coordinator shall make reasonable 

efforts to ensure all identified 

employees (including consultants) 

are available to FHWA during the 

specified dates on the general audit 

schedule. The DOT&PF will also 

ensure necessary documents and 

records are made reasonably 

available to FHWA as needed 

during the general audit schedule. 

11.2.4 After the general audit schedule 

is established, the audit 

coordinators shall work to establish 

specific audit schedules at least two 

(2) weeks prior to the scheduled 

audit. The specific audit schedule 

shall include the dates, times, and 

place for which FHWA will talk to 

DOT&PF’s employees (including 

consultants) and review of 

documents and records. 

11.2.5 To the maximum extent 

practicable, the specific audit 

schedule will identify all 

employees (including consultants) 

and documents and other records 

that DOT&PF will make available to 

FHWA during the audit. Should 

FHWA determine that it needs 

access to an employee, document or 

other record that is not identified in 

the specific audit schedule, 

DOT&PF will make reasonable 

efforts to produce such employee, 

document or other record on the 

specified dates. 

11.3 Other Agency Involvement 

11.3.1 The FHWA may invite other 

Federal or state agencies as deemed 

appropriate to assist FHWA in 

conducting an audit under this 

MOU by sitting in on interviews, 

reviewing documents obtained by 

FHWA, and making 

recommendations to FHWA. The 

FHWA’s audit coordinator will 

advise DOT&PF’s audit coordinator 

of FHWA’s intent to include other 

Federal or state agencies and the 

proposed role of such agencies in 

the audit team. If FHWA invites 

another Federal or state agency to 

participate in the audit team, the 

agency will be placed on the 

general and specific audit 

schedules. The DOT&PF will have a 

reasonable opportunity to review 

and comment on any proposed 

additional member of the audit 

team. 

11.4 Audit Report and Findings 

11.4.1 Upon completing each audit, 

FHWA will transmit to DOT&PF a 

draft of the audit report and allow 

DOT&PF a period of 14 calendar 

days within which to submit 

written comments to FHWA. The 

FHWA will grant any reasonable 

request by DOT&PF to extend its 

deadline to respond in writing to a 

draft audit report not to exceed a 

total review period of 30 days. The 

FHWA will review the comments 

provided by DOT&PF and revise the 

draft audit report as may be 

appropriate. The DOT&PF and 

FHWA may also meet and discuss 

the draft report and DOT&PF’s 

comments. If DOT&PF anticipates 

an additional meeting will be 

beneficial, DOT&PF will notify 

FHWA audit coordinator prior to 

providing its written comments so 

that such meeting may be timely 

scheduled. The FHWA will then 

prepare the draft audit report for 

public comment. 

11.4.2 As required by 23 U.S.C. 

327(g)(2), FHWA will make the 

draft audit report available for 

public comment. In carrying out 


sradovich on DSK3GMQ082PROD with NOTICES
40638 Federal Register / Vol. 82, No. 164 / Friday, August 25, 2017 / Notices 

this requirement, FHWA will, after 

receipt and incorporation of 

DOT&PF comments as provided in 

subpart 11.4.1, publish the audit 

report in the Federal Register and 

allow a comment period of 30 

calendar days. The FHWA will then 

address and respond to the public 

comments by incorporating the 

comments and response into the 

final audit report. The final audit 

report will be published in the 

Federal Register not later than 60 

calendar days after the comment 

period closes. 

PART 12. TRAINING 

12.1 The FHWA will provide DOT&PF 

with training, to the extent that 

FHWA and DOT&PF deem 

necessary, in all appropriate areas 

with respect to the environmental 

responsibilities that DOT&PF has 

assumed. Such training may be 

provided to DOT&PF by either 

FHWA, another Federal agency or 

other parties, as may be 

appropriate. 

12.2 The DOT&PF will continue to 

implement training necessary to 

meet its environmental obligations. 

Within three (3) months of the 

Effective Date of this MOU and 

annually thereafter, DOT&PF and 

FHWA, in consultation with other 

Federal agencies as deemed 

appropriate, will assess DOT&PF’s 

need for training and develop a 

training plan. The training plan will 

be updated by DOT&PF and FHWA, 

in consultation with other Federal 

agencies as appropriate, annually 

during the term of this MOU. The 

DOT&PF will be solely responsible 

for the final development and 

implementation of its training plan. 

PART 13. TERM, TERMINATION AND 

RENEWAL 

13.1 Term 

13.1.1 This MOU has a term of five (5) 

years from the Effective Date. 

13.2 Termination by FHWA 

13.2.1 As provided by 23 U.S.C. 

327(j)(1), FHWA may terminate 

DOT&PF’s participation in the 

Program, in whole or in part, at any 

time subject to the procedural 

requirements in 23 U.S.C. 327 and 

subpart 13.2.2 of this MOU. 

Termination may be based on 

DOT&PF’s failure to adequately 

carry out its responsibilities under 

this MOU including, but not limited 

to: 

A. persistent neglect of, or 

noncompliance with Federal laws, 

regulations, and policies; 

B. failure to address deficiencies 

identified during the audit or 

monitoring process; 

C. failure to secure or maintain 

adequate personnel and/or financial 

resources to carry out the 

responsibilities assumed; 

D. substantial non-compliance with 

this MOU; or 

E. persistent failure to adequately 

consult, coordinate, or account for 

the concerns of appropriate Federal, 

state, tribal, and local agencies with 

oversight, consulting, or 

coordination responsibilities under 

Federal environmental laws and 

regulations. 

13.2.2 If FHWA determines that 

DOT&PF is not adequately carrying 

out the responsibilities assigned to 

DOT&PF, then: 

A. provide DOT&PF written 

notification of its non-compliance 

determination detailing a 

description of each responsibility in 

need of corrective action regarding 

an inadequacy identified; and 

B. provide DOT&PF a period of not 

less than 120 days to take such 

corrective action as the FHWA 

determines is necessary to comply 

with this MOU. 

13.2.3 If DOT&PF, after notification 

and the 120 day period, fails to take 

satisfactory corrective action, as 

determined by FHWA, FHWA shall 

provide notice to DOT&PF of its 

determination of termination. Any 

responsibilities identified to be 

terminated in the notice that have 

been assumed by DOT&PF under 

this MOU shall transfer to FHWA. 

13.3 Termination by DOT&PF 

13.3.1 The DOT&PF may terminate its 

participation in the Program, in 

whole or in part, at any time by 

providing FHWA notice of its intent 

at least 90 calendar days prior to the 

date that DOT&PF seeks to 

terminate and subject to such terms 

and conditions as FHWA may 

provide. In that event, FHWA and 

DOT&PF may develop a plan to 

transition the responsibilities that 

DOT&PF has assumed back to 

FHWA so as to minimize disruption 

to projects, minimize confusion to 

the public, and minimize burdens 

to other affected Federal, State, and 

local agencies. 

13.3.2 Any termination of assignment 

agreed to under a transition plan 

shall not be subject to the 

procedures or limitations provided 

for in Part 9 of this MOU and shall 

be valid as agreed to in the 

transition plan. 

13.4 Validity of DOT&PF Actions 

13.4.1 Any environmental approvals 

made by DOT&PF pursuant to the 

responsibilities DOT&PF has 

assumed under this MOU shall 

remain valid after termination of 

DOT&PF’s participation in the 

Program or withdrawal of 

assignment by FHWA. The DOT&PF 

shall remain solely liable and solely 

responsible for any environmental 

approvals it makes pursuant to any 

of the responsibilities it has 

assumed while participating in the 

Program. 

13.5 Renewal 

13.5.1 This MOU is renewable in 

accordance with 23 U.S.C. 327(c)(6) 

and implementing regulations, in 

effect at the time of the renewal. 

The DOT&PF and FHWA agree to 

initiate the renewal process at least 

12 months prior to the expiration of 

this MOU. 

PART 14. AMENDMENTS 

14.1 Generally 

14.1.1 All parts of this MOU may be 

amended at any time upon mutual 

agreement by both FHWA and 

DOT&PF, pursuant to 23 CFR 

773.113(b). 

14.2 Additional Projects, Classes of 

Projects and Environmental Review 

Responsibilities 

14.2.1 The FHWA may assign, and 

DOT&PF may assume, 

responsibility for additional 

projects and additional 

environmental review 

responsibilities beyond those 

identified in Part 3 of this MOU, by 

executing an amendment to this 

MOU. 

14.2.2 If DOT&PF decides to request 

amendment of this MOU to add or 

withdraw responsibility for projects 

or classes of projects, or 

environmental review 

responsibilities beyond those 

identified in Part 3 of this MOU, 

such request shall be treated as an 

amendment to DOT&PF’s original 

application that was submitted to 

FHWA pursuant to 23 U.S.C. 327(b) 

and 23 CFR 773.113(b). In 

developing the application 

supplement, DOT&PF shall identify 

the projects, classes of projects, and 

environmental review 

responsibilities it wishes to assume 

or withdraw and make any 

appropriate adjustments to the 

information contained in DOT&PF’s 

original application, including 


sradovich on DSK3GMQ082PROD with NOTICES
Federal Register / Vol. 82, No. 164 / Friday, August 25, 2017 / Notices 40639 

verification of personnel and 

financial resources. 

IN WITNESS THEREOF, the parties 

hereto have caused this MOU to be duly 

executed in duplicate as of the date of 

the last signature written below. 

STATE OF ALASKA 

lllllllllllllllllllll

Marc A. Luiken, Commissioner, Department 

of Transportation and Public Facilities. 

Dated: lllllllllllllllll

lllllllllllllllllllll

Jahna Lindemuth, Attorney General, 

Department of Law. 

Dated: lllllllllllllllll

FEDERAL HIGHWAY ADMINISTRATION 

lllllllllllllllllllll

Brandye L. Hendrickson, Acting 

Administrator, Federal Highway 

Administration. 

Dated: lllllllllllllllll

[FR Doc. 2017–18066 Filed 8–24–17; 8:45 am] 

BILLING CODE 4910–22–P 

DEPARTMENT OF TRANSPORTATION 

Federal Highway Administration 

[Docket No. FHWA–2017–0034] 

Agency Information Collection 

Activities: Notice of Request for 

Extension of Currently Approved 

Information Collection 

AGENCY: Federal Highway 

Administration (FHWA), DOT. 

ACTION: Notice and request for 

comments. 

SUMMARY: FHWA invites public 

comments about our intention to request 

the Office of Management and Budget’s 

(OMB) approval for a new information 

collection, which is summarized below 

under SUPPLEMENTARY INFORMATION. We 

are required to publish this notice in the 

Federal Register by the Paperwork 

Reduction Act of 1995. 

DATES: Please submit comments by 

October 24, 2017. 

ADDRESSES: You may submit comments 

identified by DOT Docket ID 2017–0034 

by any of the following methods: 

Web site: For access to the docket to 

read background documents or 

comments received go to the Federal 

eRulemaking Portal: Go to http://

www.regulations.gov. Follow the online 

instructions for submitting comments. 

Fax: 1–202–493–2251. 

Mail: Docket Management Facility, 

U.S. Department of Transportation, 

West Building Ground Floor, Room 

W12–140, 1200 New Jersey Avenue SE., 

Washington, DC 20590–0001. 

Hand Delivery or Courier: U.S. 

Department of Transportation, West 

Building Ground Floor, Room W12–140, 

1200 New Jersey Avenue SE., 

Washington, DC 20590, between 9 a.m. 

and 5 p.m. ET, Monday through Friday, 

except Federal holidays. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Kenneth Petty, (202) 366 6654, Office of 

Planning, Environment, and Realty, 

Federal Highway Administration, 

Department of Transportation, 1200 

New Jersey Avenue SE., Washington, 

DC 20590, between 9 a.m. and 5p.m. ET, 

Monday through Friday, except Federal 

holidays. 

SUPPLEMENTARY INFORMATION: 

Title: Assessment of Transportation 

Planning Agency Needs, Capabilities, 

and Capacity. 

Background: FHWA will collect 

information on the current state of the 

practice, data, methods, and systems 

used by state, metropolitan, regional, 

local, and tribal transportation planning 

entities to support their required 

planning process in accordance with 

Title 23 United States Code 134 and 

135. This includes, but is not limited to, 

information to support transportation 

research, capacity building, data 

collection, planning, travel modeling, 

and performance management. This also 

includes information about how data is 

shared between planning agencies and 

how it is processed and used in the 

planning context. Questionnaires will 

be sent to State DOT headquarters and 

districts, Metropolitan Planning, 

Organizations, Regional Planning 

Organizations, and Tribal Governments. 

FHWA anticipates that one 

representative from each agency will 

take approximately 30 minutes to 

complete up to 4 questionnaires each 

year. The questionnaires will be 

administered via the Internet and 

invitations to participate in the 

questionnaire will be distributed via 

email. 

This information, once compiled, will 

allow the FHWA to better understand 

the existing capabilities that agencies 

across the country have in support of 

the planning process and the readiness 

they possess to handle new and ongoing 

challenges. As a result of the collected 

information, FHWA will focus its efforts 

and resources on providing targeted and 

meaningful support for planning and 

readiness nationwide. Additionally, 

FHWA will ensure that excellent 

planning practices are identified will be 

shared broadly across the country. 

Respondents: Respondents are 

representatives of State DOT 

headquarters and districts, Metropolitan 

Planning, Organizations, Regional 

Planning Organizations, and Tribal 

Governments. 

Respondents: 950 respondents 

annually. 

Frequency: 4 per year for 3 years. 

Estimated Average Burden per 

Response: Approximately 30 minutes. 

Estimated Total Annual Burden 

Hours: Up to 1,900 hours annually. 

Public Comments Invited: You are 

asked to comment on any aspect of this 

information collection, including: (1) 

Whether the proposed collection is 

necessary for the FHWA’s performance; 

(2) the accuracy of the estimated 

burden; (3) ways for the FHWA to 

enhance the quality, usefulness, and 

clarity of the collected information; and 

(4) ways that the burden could be 

minimized, including the use of 

computer technology, without reducing 

the quality of the collected information. 

The agency will summarize and/or 

include your comments in the request 

for OMB’s clearance of this information 

collection. 

Authority: The Paperwork Reduction Act 

of 1995; 44 U.S.C. Chapter 35, as amended; 

and 49 CFR 1.48. 

Issued on: August 18, 2017. 

Michael Howell, 

Information Collection Officer. 

[FR Doc. 2017–17992 Filed 8–24–17; 8:45 am] 

BILLING CODE P 

DEPARTMENT OF TRANSPORTATION 

Federal Highway Administration 

[Docket No. FHWA–2017–0035] 

Agency Information Collection 

Activities: Notice of Request for 

Extension of Currently Approved 

Information Collection 

AGENCY: Federal Highway 

Administration (FHWA), DOT. 

ACTION: Notice of request for extension 

of currently approved information 

collection. 

SUMMARY: The FHWA invites public 

comments about our intention to request 

the Office of Management and Budget’s 

(OMB) approval for renewal of an 

existing information collection that is 

summarized below under 

SUPPLEMENTARY INFORMATION. We are 

required to publish this notice in the 

Federal Register by the Paperwork 

Reduction Act of 1995. 

DATES: Please submit comments by 

October 24, 2017. 

ADDRESSES: You may submit comments 

identified by DOT Docket ID Number 

2017–0035 by any of the following 

methods: 

Web site: For access to the docket to 

read background documents or 


sradovich on DSK3GMQ082PROD with NOTICES