[Federal Register Volume 82, Number 164 (Friday, August 25, 2017)]
[Notices]
[Pages 40625-40639]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-18066]


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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.

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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:
    <bullet> Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the online instructions for submitting 
comments.
    <bullet> Facsimile (Fax): 1-202-493-2251.
    <bullet> 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.
    <bullet> 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, <a href="/cdn-cgi/l/email-protection#d682bfbbf89eb7a3b1be96b2b9a2f8b1b9a0"><span class="__cf_email__" data-cfemail="3c68555112745d495b547c585348125b534a">[email protected]</span></a>.
    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, <a href="/cdn-cgi/l/email-protection#ace2e9fcedeccdc0cddfc7cd82cbc3da"><span class="__cf_email__" data-cfemail="9fd1dacfdedffef3feecf4feb1f8f0e9">[email protected]</span></a>.

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

<bullet> Clean Air Act, 42 U.S.C. 7401-7671q, with the exception of 
project level conformity determinations

Alaska Specific

<bullet> Alaska National Interest Lands Conservation Act (ANILCA), 
Public Law 96-487, except any responsibilities under 16 U.S.C. 
410hh(4)(d)

[[Page 40626]]

Executive Orders (E.O.) Relating to Highway Projects

<bullet> E.O. 11593, Protection and Enhancement of the Cultural 
Environment
<bullet> 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)
<bullet> E.O. 11990, Protection of Wetlands
<bullet> E.O. 12898, Federal Actions to Address Environmental Justice 
in Minority Populations and Low Income Populations
<bullet> E.O. 13007, Indian Sacred Sites
<bullet> E.O. 13112, Invasive Species, as amended by E.O. 13751, 
Safeguarding the Nation from the Impacts of Invasive Species
<bullet> E.O. 13175, Consultation and Coordination with Indian Tribal 
Governments

FHWA-Specific

<bullet> Efficient Project Reviews for Environmental Decision Making, 
23 U.S.C. 139
<bullet> Environmental Impact and Related Procedures, 23 CFR part 771
<bullet> 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
<bullet> 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

<bullet> Comprehensive Environmental Response, Compensation, and 
Liability Act (CERCLA), 42 U.S.C. 9601-9675
<bullet> Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6901-
6992k
<bullet> Superfund Amendments and Reauthorization Act (SARA), 42 U.S.C. 
9671-9675

Historic and Cultural Resources

<bullet> Archeological and Historic Preservation Act of 1974, as 
amended, 54 USC 312501-312508
<bullet> Archeological Resources Protection Act of 1979, 16 U.S.C. 
470(aa)-(mm)
<bullet> Native American Grave Protection and Repatriation Act 
(NAGPRA), 25 U.S.C. 3001-3013; 18 U.S.C. 1170
<bullet> Preservation of Historical and Archaeological Data, 54 U.S.C. 
312501-312508
<bullet> Section 106 of the National Historic Preservation Act of 1966, 
as amended, 54 U.S.C. 306108.

Land

<bullet> Landscaping and Scenic Enhancement (Wildflowers), 23 U.S.C. 
319

Noise

<bullet> Compliance with the noise regulations in 23 CFR part 772
<bullet> Noise Control Act of 1972, 42 U.S.C. 4901-4918

Parklands and Other Special Land Uses

<bullet> Land and Water Conservation Fund (LWCF) Act, 54 U.S.C. 200302-
200310
<bullet> 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

<bullet> American Indian Religious Freedom Act, 42 U.S.C. 19961
<bullet> Farmland Protection Policy Act (FPPA), 7 U.S.C. 4201-4209

Water Resources and Wetlands

<bullet> Clean Water Act, 33 U.S.C. 1251-1387
[cir] Section 319, 33 U.S.C. 1329
[cir] Section 401, 33 U.S.C. 1341
[cir] Section 404, 33 U.S.C. 1344
<bullet> Emergency Wetlands Resources Act, 16 U.S.C. 3901 and 3921
<bullet> FHWA wetland and natural habitat mitigation regulations, 23 
CFR part 777
<bullet> Flood Disaster Protection Act, 42 U.S.C. 4001-4130
<bullet> Mitigation of Impacts to Wetlands and Natural Habitat, 23 CFR 
part 777
<bullet> Rivers and Harbors Act of 1899, 33 U.S.C. 403
<bullet> Safe Drinking Water Act (SDWA), 42 U.S.C. 300f-300j-26
<bullet> Wetlands Mitigation, 23 U.S.C. 119(g) and 133(b)(11)
<bullet> Wild and Scenic Rivers Act, 16 U.S.C. 1271-1287

Wildlife

<bullet> Anadromous Fish Conservation Act, 16 U.S.C. 757a-757f
<bullet> Bald and Golden Eagle Protection Act, as amended, 16 U.S.C. 
668-668c
<bullet> Fish and Wildlife Coordination Act, 16 U.S.C. 661-667d
<bullet> Magnuson-Stevens Fishery Conservation and Management Act of 
1976, as amended, 16 U.S.C. 1801-1891d
<bullet> Marine Mammal Protection Act, 16 U.S.C. 1361-1423h
<bullet> Migratory Bird Treaty Act, 16 U.S.C. 703-712
<bullet> 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.

[[Page 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

[[Page 40628]]

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

<bullet> Clean Air Act, 42 U.S.C. 7401-7671q, with the exception of 
project level conformity determinations

Alaska Specific

<bullet> 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

<bullet> E.O. 11593, Protection and Enhancement of the Cultural 
Environment
<bullet> 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)
<bullet> E.O. 11990, Protection of Wetlands
<bullet> E.O. 12898, Federal Actions to Address Environmental Justice 
in Minority Populations and Low Income Populations
<bullet> E.O. 13007, Indian Sacred Sites
<bullet> E.O. 13112, Invasive Species, as amended by E.O. 13751, 
Safeguarding the Nation from the Impacts of Invasive Species
<bullet> E.O. 13175, Consultation and Coordination with Indian Tribal 
Governments

FHWA-Specific

<bullet> Efficient Project Reviews for Environmental Decision Making, 
23 U.S.C. 139
<bullet> Environmental Impact and Related Procedures, 23 CFR part 771
<bullet> 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
<bullet> 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

<bullet> Comprehensive Environmental Response, Compensation, and 
Liability Act (CERCLA), 42 U.S.C. 9601-9675
<bullet> Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6901-
6992k
<bullet> Superfund Amendments and Reauthorization Act (SARA), 42 U.S.C. 
9671-9675

Historic and Cultural Resources

<bullet> Archeological and Historic Preservation Act of 1974, as 
amended, 54 U.S.C. 312501-312508
<bullet> Archeological Resources Protection Act of 1979, 16 U.S.C. 
470(aa)-(mm)
<bullet> Native American Grave Protection and Repatriation Act 
(NAGPRA), 25 U.S.C. 3001-3013; 18 U.S.C. 1170
<bullet> Preservation of Historical and Archaeological Data, 54 U.S.C. 
312501-312508
<bullet> Section 106 of the National Historic Preservation Act of 1966, 
as amended, 54 U.S.C. 306108.

Land

<bullet> Landscaping and Scenic Enhancement (Wildflowers), 23 U.S.C. 
319

Noise

<bullet> Compliance with the noise regulations in 23 CFR part 772
<bullet> Noise Control Act of 1972, 42 U.S.C. 4901-4918

Parklands and Other Special Land Uses

<bullet> Land and Water Conservation Fund (LWCF) Act, 54 U.S.C. 200302-
200310
<bullet> 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

<bullet> American Indian Religious Freedom Act, 42 U.S.C. 19961
<bullet> Farmland Protection Policy Act (FPPA), 7 U.S.C. 4201-4209

Water Resources and Wetlands

<bullet> Clean Water Act, 33 U.S.C. 1251-1387
[cir] Section 319, 33 U.S.C. 1329
[cir] Section 401 , 33 U.S.C. 1341
[cir] Section 404, 33 U.S.C. 1344
<bullet> Emergency Wetlands Resources Act, 16 U.S.C. 3901 and 3921
<bullet> FHWA wetland and natural habitat mitigation regulations, 23 
CFR part 777
<bullet> Flood Disaster Protection Act, 42 U.S.C. 4001-4130
<bullet> Mitigation of Impacts to Wetlands and Natural Habitat, 23 CFR 
part 777
<bullet> Rivers and Harbors Act of 1899, 33 U.S.C. 403
<bullet> Safe Drinking Water Act (SDWA), 42 U.S.C. 300f-300j-26
<bullet> Wetlands Mitigation, 23 U.S.C. 119(g) and 133(b)(11)
<bullet> Wild and Scenic Rivers Act, 16 U.S.C. 1271-1287

Wildlife

<bullet> Anadromous Fish Conservation Act, 16 U.S.C. 757a-757f
<bullet> Bald and Golden Eagle Protection Act, as amended, 16 U.S.C. 
668-668c
<bullet> Fish and Wildlife Coordination Act, 16 U.S.C. 661-667d
<bullet> Magnuson-Stevens Fishery Conservation and Management Act of 
1976, as amended, 16 U.S.C. 1801-1891d
<bullet> Marine Mammal Protection Act, 16 U.S.C. 1361-1423h
<bullet> Migratory Bird Treaty Act, 16 U.S.C. 703-712
<bullet> 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-to-
government 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-to-government consultation, 
including initiation of government-to-government consultation 
consistent with Executive Order 13175--Consultation and Coordination 
with

[[Page 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-to-government 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

[[Page 40630]]

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

[[Page 40631]]

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: <a href="/cdn-cgi/l/email-protection#064843564746676a67756d6728616970"><span class="__cf_email__" data-cfemail="531d16031213323f322038327d343c25">[email protected]</span></a>. 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 project-specific 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

[[Page 40632]]

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 
<a href="/cdn-cgi/l/email-protection#3d7b756a7c625c4e4e545a5350585349625154497d595249135a524b"><span class="__cf_email__" data-cfemail="ebada3bcaab48a9898828c85868e859fb487829fab8f849fc58c849d">[email protected]</span></a>, and <a href="/cdn-cgi/l/email-protection#713f2322353e255f141f0315310402151e1b5f161e07"><span class="__cf_email__" data-cfemail="c9879b9a8d869de7aca7bbad89bcbaada6a3e7aea6bf">[email protected]</span></a>, 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: 
<a href="/cdn-cgi/l/email-protection#aaece2fdebf5cbd9d9c3cdc4c7cfc4def5c6c3deeacec5de84cdc5dc"><span class="__cf_email__" data-cfemail="f4b2bca3b5ab9587879d939a99919a80ab989d80b4909b80da939b82">[email protected]</span></a> and <a href="/cdn-cgi/l/email-protection#ef8a8986838ab0819d9cc18a819d8baf9a9c8b8085c1888099"><span class="__cf_email__" data-cfemail="99fcfff0f5fcc6f7ebeab7fcf7ebfdd9eceafdf6f3b7fef6ef">[email protected]</span></a>. The FHWA and 
USDOJ's comments under subpart 6.2.5 and 6.2.6 shall be made by 
electronic mail to <a href="/cdn-cgi/l/email-protection#357b70657475545954465e541b525a43"><span class="__cf_email__" data-cfemail="96d8d3c6d7d6f7faf7e5fdf7b8f1f9e0">[email protected]</span></a> 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 pre-
decision 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

[[Page 40633]]

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

[[Page 40634]]

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 self-assessment 
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

[[Page 40635]]

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 
Federal-aid 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

[[Page 40636]]

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.

[[Page 40637]]

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

[[Page 40638]]

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

[[Page 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

-----------------------------------------------------------------------
Marc A. Luiken, Commissioner, Department of Transportation and 
Public Facilities.

Dated:-----------------------------------------------------------------

-----------------------------------------------------------------------
Jahna Lindemuth, Attorney General, Department of Law.

Dated:-----------------------------------------------------------------

FEDERAL HIGHWAY ADMINISTRATION

-----------------------------------------------------------------------
Brandye L. Hendrickson, Acting Administrator, Federal Highway 
Administration.

Dated:-----------------------------------------------------------------

[FR Doc. 2017-18066 Filed 8-24-17; 8:45 am]
BILLING CODE 4910-22-P


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