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2005 State Trail Administrators Meeting

Discussion on State Assumption of Responsibilities

SEC. 6003. STATE ASSUMPTION OF RESPONSIBILITIES FOR CERTAIN PROGRAMS AND PROJECTS.

(a) In General.-Chapter 3 of title 23, United States Code, is amended by inserting after section 324 the following:

Sec. 325. State assumption of responsibilities for certain programs and projects.

(a) Assumption of Secretary's Responsibilities Under Applicable Federal Laws.-
(1) Pilot program.- (A) Establishment.-The Secretary may establish a pilot program under which States may assume the responsibilities of the Secretary under any Federal laws subject to the requirements of this section.
(B) First 3 fiscal years.-In the first 3 fiscal years following the date of enactment of the SAFETEA-LU, the Secretary may allow up to 5 States to participate in the pilot program.
(2) Scope of program.-Under the pilot program, the Secretary may assign, and a State may assume, any of the Secretary's responsibilities (other than responsibilities relating to federally recognized Indian tribes) for environmental reviews, consultation, or decisionmaking or other actions required under any Federal law as such requirements apply to the following projects: (A) Projects funded under section 104(h).
(B) Transportation enhancement activities under section 133, as such term is defined in section 101(a)(35).

(b) Agreements.-
(1) In general.-The Secretary shall enter into a memorandum of understanding with a State participating in the pilot program setting forth the responsibilities to be assigned under subsection (a)(2) and the terms and conditions under which the assignment is being made.
(2) Certification.-Before the Secretary enters into a memorandum of understanding with a State under paragraph (1), the State shall certify that the State has in effect laws (including regulations) applicable to projects carried out and funded under this title and chapter 53 of title 49 that authorize the State to carry out the responsibilities being assumed.
(3) Maximum duration.-A memorandum of understanding with a State under this section shall be established for an initial period of no more than 3 years and may be renewed by mutual agreement on a periodic basis for periods of not more than 3 years.
(4) Compliance.-
(A) In general.-After entering into a memorandum of understanding under paragraph (1), the Secretary shall review and determine compliance by the State with the memorandum of understanding.
(B) Renewals.-The Secretary shall take into account the performance of a State under the pilot program when considering renewal of a memorandum of understanding with the State under the program.
(5) Sole responsibility.-A State that assumes responsibility under subsection (a)(2) with respect to a Federal law shall be solely responsible and solely liable for complying with and carrying out that law, and the Secretary shall have no such responsibility or liability.
(6) Acceptance of jurisdiction.-In a memorandum of understanding, the State shall consent to accept the jurisdiction of the Federal courts for the compliance, discharge, and enforcement of any responsibility of the Secretary that the State assumes.

(c) Selection of States for Pilot Program.-
(1) Application.-To be eligible to participate in the pilot program, a State shall submit to the Secretary an application that contains such information as the Secretary may require. At a minimum, an application shall include- (A) a description of the projects or classes of projects for which the State seeks to assume responsibilities under subsection (a)(2); and
(B) a certification that the State has the capability to assume such responsibilities.
(2) Public notice.-Before entering into a memorandum of understanding allowing a State to participate in the pilot program, the Secretary shall- (A) publish notice in the Federal Register of the Secretary's intent to allow the State to participate in the program, including a copy of the State's application to the Secretary and the terms of the proposed agreement with the State; and
(B) provide an opportunity for public comment.
(3) Selection criteria.-The Secretary may approve the application of a State to assume responsibilities under the program only if- (A) the requirements under paragraph (2) have been met; and
(B) the Secretary determines that the State has the capability to assume the responsibilities.
(4) Other federal agency views.-Before assigning to a State a responsibility of the Secretary that requires the Secretary to consult with another Federal agency, the Secretary shall solicit the views of the Federal agency.

(d) State Defined.-With respect to the recreational trails program, the term 'State' means the State agency designated by the Governor of the State in accordance with section 206(c)(1).

(e) Preservation of Public Interest Consideration.-Nothing in this section shall be construed to limit the requirements under any applicable law providing for the consideration and preservation of the public interest, including public participation and community values in transportation decisionmaking.

(b) Conforming Amendment.-The analysis for chapter 3 of title 23, United States Code, is amended by adding after the item relating to section 324 the following:

325. State assumption of responsibilities for certain programs and projects.


SEC. 6004. STATE ASSUMPTION OF RESPONSIBILITY FOR CATEGORICAL EXCLUSIONS.

(a) In General.-Chapter 3 of title 23, United States Code, is further amended by inserting after section 325 the following:

Sec. 326. State assumption of responsibility for categorical exclusions.

(a) Categorical Exclusion Determinations.-
(1) In general.-The Secretary may assign, and a State may assume, responsibility for determining whether certain designated activities are included within classes of action identified in regulation by the Secretary that are categorically excluded from requirements for environmental assessments or environmental impact statements pursuant to regulations promulgated by the Council on Environmental Quality under part 1500 of title 40, Code of Federal Regulations (as in effect on October 1, 2003).
(2) Scope of authority.-A determination described in paragraph (1) shall be made by a State in accordance with criteria established by the Secretary and only for types of activities specifically designated by the Secretary.
(3) Criteria.-The criteria under paragraph (2) shall include provisions for public availability of information consistent with section 552 of title 5 and the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).

(b) Other Applicable Federal Laws.-
(1) In general.-If a State assumes responsibility under subsection (a), the Secretary may also assign and the State may assume all or part of the responsibilities of the Secretary for environmental review, consultation, or other related actions required under any Federal law applicable to activities that are classified by the Secretary as categorical exclusions, with the exception of government-to-government consultation with Indian tribes, subject to the same procedural and substantive requirements as would be required if that responsibility were carried out by the Secretary.
(2) Sole responsibility.-A State that assumes responsibility under paragraph (1) with respect to a Federal law shall be solely responsible and solely liable for complying with and carrying out that law, and the Secretary shall have no such responsibility or liability.

(c) Memoranda of Understanding.-
(1) In general.-The Secretary and the State, after providing public notice and opportunity for comment, shall enter into a memorandum of understanding setting forth the responsibilities to be assigned under this section and the terms and conditions under which the assignments are made, including establishment of the circumstances under which the Secretary would reassume responsibility for categorical exclusion determinations.
(2) Term.-A memorandum of understanding-
(A) shall have a term of not more than 3 years; and
(B) shall be renewable.
(3) Acceptance of jurisdiction.-In a memorandum of understanding, the State shall consent to accept the jurisdiction of the Federal courts for the compliance, discharge, and enforcement of any responsibility of the Secretary that the State assumes.
(4) Monitoring.-The Secretary shall-
(A) monitor compliance by the State with the memorandum of understanding and the provision by the State of financial resources to carry out the memorandum of understanding; and
(B) take into account the performance by the State when considering renewal of the memorandum of understanding.

(d) Termination.-The Secretary may terminate any assumption of responsibility under a memorandum of understanding on a determination that the State is not adequately carrying out the responsibilities assigned to the State.

(e) State Agency Deemed to Be Federal Agency.-A State agency that is assigned a responsibility under a memorandum of understanding shall be deemed to be a Federal agency for the purposes of the Federal law under which the responsibility is exercised.

(b) Conforming Amendment.-The analysis for chapter 3 of title 23, United States Code, is further amended by adding after the item relating to section 325 the following:

326. State assumption of responsibility for categorical exclusions.


SEC. 6005. SURFACE TRANSPORTATION PROJECT DELIVERY PILOT PROGRAM.

(a) In General.-Chapter 3 of title 23, United States Code, is further amended by inserting after section 326 the following:

Sec. 327. Surface transportation project delivery pilot program.

(a) Establishment.-
(1) In general.-The Secretary shall carry out a surface transportation project delivery pilot program (referred to in this section as the 'program').
(2) Assumption of responsibility.-
(A) In general.-Subject to the other provisions of this section, with the written agreement of the Secretary and a State, which may be in the form of a memorandum of understanding, the Secretary may assign, and the State may assume, the responsibilities of the Secretary with respect to one or more highway projects within the State under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).
(B) Additional responsibility.-If a State assumes responsibility under subparagraph (A)-
(i) the Secretary may assign to the State, and the State may assume, all or part of the responsibilities of the Secretary for environmental review, consultation, or other action required under any Federal environmental law pertaining to the review or approval of a specific project; but
(ii) the Secretary may not assign-
(I) responsibility for any conformity determination required under section 176 of the Clean Air Act (42 U.S.C. 7506); or
(II) any responsibility imposed on the Secretary by section 134 or 135.
(C) Procedural and substantive requirements.-A State shall assume responsibility under this section subject to the same procedural and substantive requirements as would apply if that responsibility were carried out by the Secretary.
(D) Federal responsibility.-Any responsibility of the Secretary not explicitly assumed by the State by written agreement under this section shall remain the responsibility of the Secretary.
(E) No effect on authority.-Nothing in this section preempts or interferes with any power, jurisdiction, responsibility, or authority of an agency, other than the Department of Transportation, under applicable law (including regulations) with respect to a project.

(b) State Participation.-
(1) Number of participating states.-The Secretary may permit not more than 5 States (including the States of Alaska, California, Ohio, Oklahoma, and Texas) to participate in the program.
(2) Application.-Not later than 270 days after the date of enactment of this section, the Secretary shall promulgate regulations that establish requirements relating to information required to be contained in any application of a State to participate in the program, including, at a minimum-
(A) the projects or classes of projects for which the State anticipates exercising the authority that may be granted under the program;
(B) verification of the financial resources necessary to carry out the authority that may be granted under the program; and
(C) evidence of the notice and solicitation of public comment by the State relating to participation of the State in the program, including copies of comments received from that solicitation.
(3) Public notice.- (A) In general.-Each State that submits an application under this subsection shall give notice of the intent of the State to participate in the program not later than 30 days before the date of submission of the application.
(B) Method of notice and solicitation.-The State shall provide notice and solicit public comment under this paragraph by publishing the complete application of the State in accordance with the appropriate public notice law of the State.
(4) Selection criteria.-The Secretary may approve the application of a State under this section only if- (A) the regulatory requirements under paragraph (2) have been met;
(B) the Secretary determines that the State has the capability, including financial and personnel, to assume the responsibility; and
(C) the head of the State agency having primary jurisdiction over highway matters enters into a written agreement with the Secretary described in subsection (c).
(5) Other federal agency views.-If a State applies to assume a responsibility of the Secretary that would have required the Secretary to consult with another Federal agency, the Secretary shall solicit the views of the Federal agency before approving the application.

(c) Written Agreement.-A written agreement under this section shall-
(1) be executed by the Governor or the top-ranking transportation official in the State who is charged with responsibility for highway construction;
(2) be in such form as the Secretary may prescribe;
(3) provide that the State-
(A) agrees to assume all or part of the responsibilities of the Secretary described in subsection (a);
(B) expressly consents, on behalf of the State, to accept the jurisdiction of the Federal courts for the compliance, discharge, and enforcement of any responsibility of the Secretary assumed by the State;
(C) certifies that State laws (including regulations) are in effect that-
(i) authorize the State to take the actions necessary to carry out the responsibilities being assumed; and
(ii) are comparable to section 552 of title 5, including providing that any decision regarding the public availability of a document under those State laws is reviewable by a court of competent jurisdiction; and
(D) agrees to maintain the financial resources necessary to carry out the responsibilities being assumed.

(d) Jurisdiction.-
(1) In general.-The United States district courts shall have exclusive jurisdiction over any civil action against a State for failure to carry out any responsibility of the State under this section.
(2) Legal standards and requirements.-A civil action under paragraph (1) shall be governed by the legal standards and requirements that would apply in such a civil action against the Secretary had the Secretary taken the actions in question.
(3) Intervention.-The Secretary shall have the right to intervene in any action described in paragraph (1).

(e) Effect of Assumption of Responsibility.-A State that assumes responsibility under subsection (a)(2) shall be solely responsible and solely liable for carrying out, in lieu of the Secretary, the responsibilities assumed under subsection (a)(2), until the program is terminated as provided in subsection (i).

(f) Limitations on Agreements.-Nothing in this section permits a State to assume any rulemaking authority of the Secretary under any Federal law.

(g) Audits.-
(1) In general.-To ensure compliance by a State with any agreement of the State under subsection (c) (including compliance by the State with all Federal laws for which responsibility is assumed under subsection (a)(2)), for each State participating in the program under this section, the Secretary shall conduct- (A) semiannual audits during each of the first 2 years of State participation; and
(B) annual audits during each subsequent year of State participation.
(2) Public availability and comment.- (A) In general.-An audit conducted under paragraph (1) shall be provided to the public for comment.
(B) Response.-Not later than 60 days after the date on which the period for public comment ends, the Secretary shall respond to public comments received under subparagraph (A).

(h) Report to Congress.-The Secretary shall submit to Congress an annual report that describes the administration of the program.

(i) Termination.-
(1) In general.-Except as provided in paragraph (2), the program shall terminate on the date that is 6 years after the date of enactment of this section.
(2) Termination by secretary.-The Secretary may terminate the participation of any State in the program if-
(A) the Secretary determines that the State is not adequately carrying out the responsibilities assigned to the State;
(B) the Secretary provides to the State-
(i) notification of the determination of noncompliance; and
(ii) a period of at least 30 days during which to take such corrective action as the Secretary determines is necessary to comply with the applicable agreement; and
(C) the State, after the notification and period provided under subparagraph (B), fails to take satisfactory corrective action, as determined by Secretary.

(b) Conforming Amendment.-The analysis for chapter 3 of title 23, United States Code, is further amended by adding after the item relating to section 326 the following:

327. Surface transportation project delivery pilot program.

Updated: 02/12/2014
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