PART 773—SURFACE TRANSPORTATION PROJECT DELIVERY PROGRAM APPLICATION REQUIREMENTS AND TERMINATION Authority: 23 U.S.C. 315 and 327; 49 CFR 1.81(a)(4)-(6); 49 CFR 1.85 Source: 79 FR 55398, Sept. 16, 2014, unless otherwise noted. § 773.101 Purpose. The purpose of this part is to establish the requirements for an application by a State to participate in the Surface Transportation Project Delivery Program (Program). The Program allows, under certain circumstances, the Secretary to assign and a State to assume the responsibilities under the National Environmental Policy Act of 1969 (NEPA) and for environmental review, consultation, or other action required under certain Federal environmental laws with respect to one or more highway, railroad, public transportation, or multimodal projects within the State. § 773.103 Definitions. Unless otherwise specified in this part, the definitions in 23 U.S.C. 101(a) and 49 U.S.C., are applicable to this part. As used in this part: Classes of projects Federal environmental law Highway project MOU NEPA et seq. Operating Administration Program Public transportation project Railroad project State § 773.105 Eligibility. (a) Applicants. (1) For highway projects: (i) The State must act by and through the State Department of Transportation (State DOT) established and maintained in conformity with 23 U.S.C. 302 and 23 CFR 1.3; (ii) The State expressly consents to accept the jurisdiction of the Federal courts for compliance, discharge, and enforcement of any responsibility assumed by the State; (iii) The State has laws in effect that authorize the State to take the actions necessary to carry out the responsibilities it is assuming; (iv) The State has laws in effect that are comparable to the Freedom of Information Act (FOIA) (5 U.S.C. 552), including laws providing that any decision regarding the public availability of a document under those State laws is reviewable by a court of competent jurisdiction; and (v) The State has the financial and personnel resources necessary to carry out the responsibilities it is assuming. (2) For railroad or public transportation projects: (i) The State must comply with paragraphs (a)(1)(ii) through (v) of this section; and (ii) The State must have assumed the responsibilities of the Secretary under this part with respect to one or more highway projects. (b) Responsibilities. (1) Conformity determinations required under section 176 of the Clean Air Act (42 U.S.C. 7506); (2) The Secretary's responsibilities under 23 U.S.C. 134 and 135; (3) The Secretary's responsibilities under 49 U.S.C. 5303 and 5304; (4) The Secretary's responsibilities for government-to-government consultation with Indian tribes; (5) The Secretary's responsibilities for approvals that are not considered to be part of the environmental review of a project, such as project approvals, Interstate access approvals, and safety approvals; and (6) The Secretary's responsibilities under NEPA and for reviews, consultations, and other actions required under other Federal environmental laws for actions of Operating Administrations other than FHWA, FRA, and FTA. (c) Projects. (1) Projects that cross State boundaries, and (2) Projects adjacent to or that cross international boundaries. (d) Discretion retained. § 773.107 Pre-application requirements. (a) Coordination meeting. (b) Public comment. (1) The State requesting FTA's responsibilities with respect to public transportation projects must identify and solicit public comment from potential recipients of assistance under chapter 53 of title 49 U.S.C. These comments may include requests for the Secretary to maintain the environmental review responsibilities with respect to one or more public transportation projects. (2) The State must submit copies of all comments received as a result of the publication of the respective application(s). The State must summarize the comments received, develop responses to substantive comments, and note any revisions or actions taken in response to the public comment. (c) Sovereign immunity waiver. (d) Comparable State laws. § 773.109 Application requirements. (a) Highway project responsibilities. (1) The highway projects or classes of highway projects for which the State is requesting assumption of Federal environmental review responsibilities under NEPA. The State must specifically identify in its application each highway project for which a draft environmental impact statement has been issued and for which a final environmental impact statement is pending, prior to the submission of its application; (2) Each Federal environmental law, review, consultation, or other environmental responsibility the State seeks to assume under this Program. The State must indicate whether it proposes to phase-in the assumption of these responsibilities, i.e. (3) For each responsibility requested in paragraphs (a)(1) and (2) of this section, the State must describe how it intends to carry out these responsibilities. Such description must include: (i) A summary of State procedures currently in place to guide the development of documents, analyses, and consultations required to fulfill the environmental review responsibilities requested. For States that have comparable State environmental review procedures, the discussion should describe the differences, if any, between the State environmental review process and the Federal environmental review process, focusing on any standard that is mandated by State law, regulation, executive order, or policy that is not applicable to the Federal environmental review. The State must submit a copy of the procedures with the application unless these are available electronically. The State may submit the procedures electronically, either through email or by providing a hyperlink; (ii) Any changes that the State has made or will make in the management of its environmental program to provide the additional staff and training necessary for quality control and assurance, appropriate levels of analysis, adequate expertise in areas where the State is requesting responsibilities, and expertise in management of the NEPA process and reviews under other Federal environmental laws; (iii) A discussion of how the State will conduct legal reviews for the environmental documents it produces, including legal sufficiency reviews where required by law, policy, or guidance; (iv) A discussion of how the State will identify and address those projects that without assignment would have required FHWA Headquarters' prior concurrence of the final environmental impact statement under 23 CFR 771.125(c); and (v) A discussion of otherwise permissible project delivery methods the State intends to pursue, and the process it will use to decide whether pursuing those project delivery methods and being responsible for the environmental review meet the objectivity and integrity requirements of NEPA. (4) A verification of the personnel necessary to carry out the authority that the State may assume under the Program. The verification must contain the following information: (i) A description of the staff positions, including management, that will be dedicated to fulfilling the additional functions needed to perform the assigned responsibilities; (ii) A description of any changes to the State's organizational structure that would be necessary to provide for efficient administration of the responsibilities assumed; and (iii) A discussion of personnel needs that may be met by the State's use of outside consultants, including legal counsel provided by the State Attorney General or private counsel; (5) A summary of the anticipated financial resources available to meet the activities and staffing needs identified in paragraphs (a)(3) and (4) of this section, and a commitment to make adequate financial resources available to meet these needs; (6) Certification and explanation by the State's Attorney General, or other State official legally empowered by State law to issue legal opinions that bind the State, that the State has legal authority to assume the responsibilities of the Secretary for the Federal environmental laws and projects requested, and that the State consents to exclusive Federal court jurisdiction with respect to the responsibilities the State is requesting to assume. Such consent must be broad enough to include future changes in relevant Federal policies and procedures or allow for its amendment to include such future changes; (7) Certification by the State's Attorney General, or other State official legally empowered by State law to issue legal opinions that bind the State, that the State has laws that are comparable to FOIA, including laws that allow for any decision regarding the public availability of a document under those laws to be reviewed by a court of competent jurisdiction; (8) Evidence that the required notice and solicitation of public comment by the State relating to participation in the Program has taken place and copies of the State's responses to the comments; (9) A point of contact for questions regarding the application and a point of contact regarding the implementation of the Program (if different); and (10) The State Governor's (or in the case of District of Columbia, the Mayor's) signature approving the application. For the Secretary's responsibilities with respect to highway projects, the top ranking transportation official in the State who is charged with responsibility for highway construction may sign the application instead of the Governor. (b) Public transportation project responsibilities. (1) Evidence that FHWA has assigned to the State, or the State has requested assignment of the responsibilities of, FHWA with respect to one or more highway projects within the State under NEPA; and (2) Evidence that any potential recipients of assistance under chapter 53 of title 49 U.S.C. for any public transportation project or classes of public transportation projects in the State being sought for Program assignment have received written notice of the application with adequate time to provide comments on the application. (c) Railroad project responsibilities. (d) Multimodal project responsibilities. (1) Request the Secretary's environmental review responsibilities with respect to the highway, railroad, and/or public transportation elements of one or more particular multimodal projects by submitting an application with the information required in paragraphs (a)(1) through (10) of this section, but with respect to the multimodal project(s) at issue. The application must either request highway responsibilities for the multimodal project or include evidence that FHWA has assigned to the State, or the State has requested assignment of, the responsibilities of FHWA with respect to one or more highway projects within the State under NEPA; and (2) Request, at the same time the State applies for assignment of one of the Operating Administration's environmental review responsibilities, the general multimodal environmental review responsibilities of the other Operating Administration(s). (e) Electronic submissions. (f) Joint application. (g) Requests for additional information. § 773.111 Application review and approval. (a) The Operating Administration(s) must solicit public comment on the pending request and must consider comments received before rendering a decision on the State's application. Materials made available for this public review must include the State's application, a draft of the MOU, and a list of responsibilities sought by the State that the Operating Administration(s) proposes to retain. The notification may be a joint notification if two or more Operating Administrations are involved in the assignment for a project or a class of projects. (b) If the Operating Administration(s) approves the application of a State, then the Operating Administration(s) will invite the State to execute the MOU. (c) The Administrator for the appropriate Operating Administration will be responsible for approving the application and executing the MOU on behalf of the Operating Administration. (d) The State's participation in the Program is effective upon full execution of the MOU. The Operating Administration's responsibilities under NEPA and any other environmental laws may not be assigned to or assumed by the State prior to execution of the MOU with the exception of renewal situations under § 773.115(g) of this part. (e) The MOU must have a term of not more than 5 years that may be renewed pursuant to § 773.115 of this part. (f) The State must publish the MOU and approved application on its Web site and other relevant State Web sites and make it reasonably available to the public for inspection and copying. § 773.113 Application amendments. (a) After a State submits its application to the appropriate Operating Administration(s), but prior to the execution of the MOU(s), the State may amend its application at any time to request the addition or withdrawal of projects, classes of projects, or environmental review responsibilities consistent with the requirements of this part. (1) Prior to submitting any such amendment, the State must coordinate with the appropriate Operating Administration(s) to determine if the amendment represents a substantial change in the application to such an extent that additional notice and opportunity for public comment is needed. The Operating Administration is responsible for making the final decision on whether notice and public comment is needed and whether to provide one opportunity (pursuant to § 773.107(b)) or two opportunities (pursuant to § 773.107(b) and § 773.111(a)) for public comment. The Operating Administration will make this determination based on the magnitude of the changes. (2) If the Operating Administration determines that notice and solicitation of public comment is needed pursuant to § 773.107(b), the State must include copies of all comments received, responses to substantive comments, and note the changes, if any, that were made in response to the comments. (b) After the execution of the MOU(s) or renewal MOU(s), a State may amend its application to the appropriate Operating Administration(s) to request additional projects, classes of projects, or more environmental review responsibilities consistent with the requirements of this part. (1) Prior to requesting any such amendment, the State must coordinate with the appropriate Operating Administration(s) to determine if the amendment represents a substantial change in the application information to the extent that additional notice and opportunity for public comment is needed. The Operating Administration is responsible for making the final decision on whether notice and public comment are needed and whether to provide one opportunity (pursuant to § 773.107(b) or § 773.111(a)) or two opportunities (pursuant to § 773.107(b) and § 773.111(a)) for public comment. The Operating Administration will make this determination based on the magnitude of the changes. (2) If the Operating Administration determines that notice and solicitation of public comment is required pursuant to § 773.107(b), the State must include copies of all comments received, responses to substantive comments, and note the changes, if any, that were made in response to the comments. (3) The Operating Administration is responsible for making the final decision on whether to accept the amendment and whether an amendment to the MOU is required. Amendments do not change the expiration date of the initial or renewal MOU. § 773.115 Renewals. (a) A State that intends to renew its participation in the Program must notify the appropriate Operating Administration(s) at least 12 months before the expiration of the MOU. (b) Prior to requesting renewal, the State must coordinate with the appropriate Operating Administration(s) to determine if significant changes have occurred or new assignment responsibilities are being sought that would warrant statewide notice and opportunity for public comment prior to the State's submission of the renewal package. The Operating Administration is responsible for making the final decision on whether the State should engage in statewide notification prior to its submittal. The Operating Administration will make this determination based on the magnitude of the change(s) in the information and/or circumstances. (c) The renewal package must: (1) Describe changes to the information submitted in the initial Program application; (2) Provide up-to-date certifications required in § 773.109(a)(6) and (7) of this part for the applicable Operating Administration(s), if up-to-date certifications are needed or if the necessary State laws have termination dates that would occur before the end of a renewal period; (3) Provide evidence of the statewide public notification, if one was required under paragraph (b) of this section, and include copies of all comments received, responses to substantive comments, and note the changes, if any, that were made to the renewal package in response to the comments; and (4) Include the State Governor's (or in the case of District of Columbia, the Mayor's) signature approving the renewal package. For the Secretary's responsibilities with respect to highway projects, the top ranking transportation official in the State who is charged with responsibility for highway construction may sign the renewal package instead of the Governor. (d) A State must submit a renewal package no later than 180 days prior to the expiration of the MOU. (e) The Operating Administration(s) may request that the State provide additional information to address any deficiencies in the renewal application or to provide clarifications. (f) The Operating Administration(s) must provide Federal Register (g) In determining whether to approve the State's renewal request, the Operating Administration will take into account the renewal package, comments received if an opportunity for public comments was provided in accordance with paragraph (f) of this section, the auditing and monitoring reports, and the State's overall performance in the Program. If the Operating Administration(s) approves the renewal request, then the Operating Administration(s) will invite the State to execute the renewal MOU. The Administrator for the appropriate Operating Administration will be responsible for approving the application and executing the renewal MOU on behalf of the Operating Administration. The renewal MOU must have a term of not more than 5 years, and the State must publish it on the State's DOT Web site and other relevant State Web site(s). (h) At the discretion of the Operating Administration, a State may retain temporarily its assigned and assumed responsibilities under a MOU after the expiration of the MOU, where the relevant Operating Administration(s) determines that: (1) The State made a timely submission of a complete renewal application in accordance with the provisions of this section; (2) The Operating Administration(s) determines that all reasonable efforts have been made to achieve a timely execution of the renewal; and (3) The Operating Administration(s) determines that it is in the best interest of the public to grant the continuance. § 773.117 Termination. (a) Termination by the Operating Administration. (1) The Operating Administration(s) may rely on the auditing and monitoring reports as sources for a finding that the State is not adequately carrying out its responsibilities. The Operating Administration(s) may also rely on information on noncompliance obtained outside the auditing and monitoring process. (2) The Operating Administration(s) may not terminate a State's participation without providing the State with notification of the noncompliance issue that could give rise to the termination, and without affording the State an opportunity to take corrective action to address the noncompliance issue. The Operating Administration(s) must provide the State a period of no less than 120 days to take corrective actions. The Operating Administration(s) is responsible for making the final decision on whether the corrective action is satisfactory. (3) On the request of the Governor of the State (or in the case of the District of Columbia, the Mayor), the Operating Administration(s) shall provide a detailed description of each responsibility in need of corrective action regarding an inadequacy identified by the Operating Administration(s). (b) Termination by the State. (1) A list of projects and their status in the environmental review process that the State will return to the Operating Administration(s); (2) A process for transferring files on pending projects; (3) A process for notifying the public that the State will terminate its participation in the Program and a projected date upon which this termination will take effect; (4) Points of contacts for pending projects; and (5) Any other information required by the Operating Administration(s) to ensure the smooth transition of environmental review responsibilities and prevent disruption in the environmental reviews of projects to the maximum extent possible. (c) Termination by mutual agreement. (d) Effect of termination of highway responsibilities. [79 FR 55398, Sept. 16, 2014, as amended at 85 FR 84226, Dec. 28, 2020] Appendix A to Part 773—Example List of the Secretary's Environmental Review Responsibilities That May Be Assigned Under 23 U.S.C. 327 Federal Procedures NEPA, 42 U.S.C. 4321 et seq. Regulations for Implementing the Procedural Provisions of NEPA at 40 CFR parts 1500-1508. FHWA/FTA environmental regulations at 23 CFR part 771. FRA's Procedures for Considering Environmental Impacts, 64 FR 28545, May 26, 1999 and 78 FR 2713, Jan. 14, 2013. Clean Air Act, 42 U.S.C. 7401-7671q. Any determinations that do not involve conformity. Efficient Environmental Reviews for Project Decisionmaking, 23 U.S.C. 139. Noise Noise Control Act of 1972, 42 U.S.C. 4901-4918. Airport Noise and Capacity Act of 1990, 49 U.S.C. 47521-47534. FHWA noise regulations at 23 CFR part 772. Wildlife Endangered Species Act of 1973, 16 U.S.C. 1531-1544. Marine Mammal Protection Act, 16 U.S.C. 1361-1423h. Anadromous Fish Conservation Act, 16 U.S.C. 757a-757f. Fish and Wildlife Coordination Act, 16 U.S.C. 661-667d. Migratory Bird Treaty Act, 16 U.S.C. 703-712. Magnuson-Stevens Fishery Conservation and Management Act of 1976, as amended, 16 U.S.C. 1801-1891d. Historic and Cultural Resources National Historic Preservation Act of 1966, 16 U.S.C. 470 et seq. Archaeological Resources Protection Act of 1979, 16 U.S.C. 470aa-470mm. Archeological and Historic Preservation Act, 16 U.S.C. 469-469c. Native American Graves Protection and Repatriation Act, 25 U.S.C. 3001-3013; 18 U.S.C. 1170. Social and Economic Impacts American Indian Religious Freedom Act, 42 U.S.C. 1996. Farmland Protection Policy Act, 7 U.S.C. 4201-4209. Water Resources and Wetlands Clean Water Act, 33 U.S.C. 1251-1387. Section 404, 33 U.S.C. 1344 Section 401, 33 U.S.C. 1341 Section 319, 33 U.S.C. 1329 Coastal Barrier Resources Act, 16 U.S.C. 3501-3510. Coastal Zone Management Act, 16 U.S.C. 1451-1466. Safe Drinking Water Act, 42 U.S.C. 300f—300j-26. Rivers and Harbors Act of 1899, 33 U.S.C. 403. Wild and Scenic Rivers Act, 16 U.S.C. 1271-1287. Emergency Wetlands Resources Act, 16 U.S.C. 3901 and 3921. Wetlands Mitigation, 23 U.S.C. 119(g) and 133(b)(14). FHWA wetland and natural habitat mitigation regulations at 23 CFR part 777. Flood Disaster Protection Act, 42 U.S.C. 4001-4130. Parklands Section 4(f), 49 U.S.C. 303; 23 U.S.C. 138. FHWA/FTA Section 4(f) regulations at 23 CFR part 774. Land and Water Conservation Fund, 16 U.S.C. 460 l l Hazardous Materials Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9601-9675. Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. 9671-9675. Resource Conservation and Recovery Act, 42 U.S.C. 6901-6992k. Executive Orders Relating to Eligible Projects E.O. 11990, Protection of Wetlands E.O. 11988, Floodplain Management E.O. 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low Income Populations E.O. 13112, Invasive Species