Surface Transportation Project Delivery Program; Alaska Department of Transportation Audit Report, 45181-45186 [2018-19184]
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Office of the Secretary based on the
selection criteria. The final funding
decisions will be made by the Secretary
of Transportation.
3. Additional Information—Prior to
award, each selected applicant will be
subject to a risk assessment required by
2 CFR 200.205. The FHWA must review
and consider any information about the
applicant that is in the designated
integrity and performance system
accessible through SAM, currently the
Federal Awardee Performance and
Integrity Information System (FAPIIS).
An applicant may review information in
FAPIIS and comment on any
information about itself. The FHWA
will consider comments by the
applicant in addition to the other
information in FAPIIS, in making a
judgment about the applicant’s integrity,
business ethics, and record of
performance under Federal awards
when completing the review of risk
posed by applicants.
VI. Federal Award Administration
Information
1. Federal Award Notices—The
FHWA will announce awarded projects
by posting a list of selected projects at
https://www.fhwa.dot.gov/bridge/
chbp.cfm. Following the announcement,
FHWA will contact the point of contact
listed in form SF–42.
2. Administrative and National Policy
Requirements—All awards will be
administered pursuant to the Uniform
Administrative Requirements, Cost
Principles and Audit Requirements for
Federal Awards found in 2 CFR part
200, as adopted by DOT at 2 CFR 1201.
In addition, applicable Federal laws,
rules, and regulations of FHWA will
apply to the projects that receive
program funds, including planning
requirements, agreements, Buy America
compliance, and other grant program
requirements.
3. Reporting—Each recipient of
program funding must submit the
Federal Financial Report (SF–425) on
the financial condition of the project
and the project’s progress annually, as
well as an Annual Budget Review and
Program Plan to monitor the use of
Federal funds and ensure accountability
and financial transparency in the
competitive highway bridge program by
September 30 of each year. The FHWA
reserves the right to request additional
information, if necessary, to better
understand the status of the project.
4. Reporting Matters Related to
Integrity and Performance—If the total
value of a selected recipient’s currently
active grants, cooperative agreements,
and procurement contracts from all
Federal awarding agencies exceeds
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$10,000,000 for any period of time
during the period of performance of this
Federal award, the applicant during that
period of time must maintain the
information reported to SAM and
FAPIIS about civil, criminal, or
administrative proceedings described in
paragraph 2 of this award term and
condition. This is a statutory
requirement under Section 872 of Public
Law 110–417, as amended (41 U.S.C.
2313). As required by Section 3010 of
Public Law 111–212, all information
posted in the designated integrity and
performance system on or after April 15,
2011, except past performance reviews
required for Federal procurement
contracts, will be publicly available.
5. Federal Awarding Agency
Contact(s)—For further information
concerning this notice, please contact
the Competitive Highway Bridge
Program staff via email at CHBPgrant@
dot.gov, or call Douglas Blades at 202–
366–4622. A TDD is available for
individuals who are deaf or hard of
hearing at 202–366–3993. In addition,
FHWA will post answers to questions
and requests for clarifications on
FHWA’s website at https://
www.fhwa.dot.gov/bridge/chbp.cfm. To
ensure applicants receive accurate
information about eligibility or the
program, the applicant is encouraged to
contact FHWA directly, rather than
through intermediaries or third parties,
with questions. The FHWA staff may
also conduct briefings on the
Competitive Highway Bridge Program
discretionary grants selection and award
process upon request.
VIII. Other Information
1. Protection of Confidential Business
Information—All information submitted
as part of, or in support of, any
application shall use publicly available
data or data that can be made public and
methods that are accepted by industry
practice and standards, to the extent
possible. If the application includes
information the applicant considers to
be a trade secret or confidential
commercial or financial information, the
applicant should do the following:
(1) Note on the front cover that the
submission ‘‘Contains Confidential
Business Information (CBI)’’;
(2) mark each affected page ‘‘CBI’’;
and
(3) highlight or otherwise denote the
CBI portions.
The FHWA protects such information
from disclosure to the extent allowed
under applicable law. In the event
FHWA receives a Freedom of
Information Act (FOIA) request for the
information, FHWA will follow DOT
procedures described in its FOIA
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regulations at 49 CFR 7.17. Only
information that is ultimately
determined to be confidential under that
procedure will be exempt from
disclosure under the Freedom of
Information Act.
Authority: Public Law. 115–141.
Brandye L. Hendrickson,
Deputy Administrator, Federal Highway
Administration.
[FR Doc. 2018–19182 Filed 9–4–18; 8:45 am]
BILLING CODE P
DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
[FHWA Docket No. FHWA–2018–0040]
Surface Transportation Project
Delivery Program; Alaska Department
of Transportation Audit Report
Federal Highway
Administration (FHWA), U.S.
Department of Transportation (DOT).
ACTION: Notice; Request for comment.
AGENCY:
The Moving Ahead for
Progress in the 21st Century Act (MAP–
21) established the Surface
Transportation Project Delivery Program
that allows a State to assume FHWA’s
environmental responsibilities for
environmental review, consultation, and
compliance under the National
Environmental Policy Act (NEPA) for
Federal highway projects. When a State
assumes these Federal responsibilities,
the State becomes solely responsible
and liable for the responsibilities it has
assumed, in lieu of FHWA. This
program mandates annual audits during
each of the first 4 years to ensure the
State’s compliance with program
requirements. This notice announces
and solicits comments on the first audit
report for the Alaska Department of
Transportation and Public Facilities
(DOT&PF).
DATES: Comments must be received on
or before October 5, 2018.
ADDRESSES: Mail or hand deliver
comments to Docket Management
Facility: U.S. Department of
Transportation, 1200 New Jersey
Avenue SE, Room W12–140,
Washington, DC 20590. You may also
submit comments electronically at
www.regulations.gov. All comments
should include the docket number that
appears in the heading of this
document. All comments received will
be available for examination and
copying at the above address from 9
a.m. to 5 p.m., e.t., Monday through
Friday, except Federal holidays. Those
desiring notification of receipt of
SUMMARY:
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comments must include a selfaddressed, stamped postcard or you
may print the acknowledgment page
that appears after submitting comments
electronically. Anyone can search the
electronic form of all comments in any
of our dockets by the name of the
individual submitting the comment (or
signing the comment, if submitted on
behalf of an association, business, or
labor union). The DOT posts these
comments, without edits, including any
personal information the commenter
provides, to www.regulations.gov, as
described in the system of records
notice (DOT/ALL–14 FDMS), which can
be reviewed at www.dot.gov/privacy.
FOR FURTHER INFORMATION CONTACT: Mr.
David T. Williams, Office of Project
Development and Environmental
Review, (202) 366–4074,
David.Williams@dot.gov, or Mr. Jomar
Maldonado, Office of the Chief Counsel,
(202) 366–1373, Jomar.Maldonado@
dot.gov, Federal Highway
Administration, Department of
Transportation, 1200 New Jersey
Avenue SE, Washington, DC 20590.
Office hours are from 8:00 a.m. to 4:30
p.m., e.t., Monday through Friday,
except Federal holidays.
SUPPLEMENTARY INFORMATION:
Electronic Access
An electronic copy of this notice may
be downloaded from the specific docket
page at www.regulations.gov.
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Background
The Surface Transportation Project
Delivery Program, codified at 23 United
States Code (U.S.C.) 327, commonly
known as the NEPA Assignment
Program, allows a State to assume
FHWA’s environmental responsibilities
for review, consultation, and
compliance for Federal highway
projects. When a State assumes these
Federal responsibilities, the State
becomes solely liable for carrying out
the responsibilities, in lieu of the
FHWA. The DOT&PF published its
application for NEPA assumption on
May 1, 2016, and made it available for
public comment for 30 days. After
considering public comments, DOT&PF
submitted its application to FHWA on
July 12, 2016. The application served as
the basis for developing a Memorandum
of Understanding (MOU) that identifies
the responsibilities and obligations that
the DOT&PF would assume. The FHWA
published a notice of the draft MOU in
the Federal Register on August 25,
2017, with a 30-day comment period to
solicit the views of the public and
Federal Agencies. After the end of the
comment period, FHWA and DOT&PF
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April 16–20, 2018
The Audit Team finds Alaska
Department of Transportation and
Public Facilities (DOT&PF) is carrying
out the National Environmental Policy
Act (NEPA) Assignment Program
responsibilities (assumed November
2017) and is compliant with the
provisions of the NEPA Assignment
Program Memorandum of
Understanding (MOU). The Alaska
DOT&PF has established written
internal policies and procedures for the
assumed Federal responsibilities.
Following 5 months after execution of
the MOU, the Audit Team identified
one non-compliance observation, seven
general observations, and six successful
practices. Overall, DOT&PF has carried
out the environmental responsibilities it
assumed through the MOU and the
application for the NEPA Assignment
Program.
responsibilities and liabilities for
Federal-aid highway projects and
certain other FHWA approvals for
transportation projects in Alaska. Except
for three projects, which FHWA
retained, FHWA’s only NEPA
responsibilities in Alaska are oversight
and review of how DOT&PF executes its
NEPA Assignment Program obligations.
The MOU covers environmental review
responsibilities for projects that require
the preparation of environmental
assessments (EAs), environmental
impact statements (EIS), and categorical
exclusions (CE).
As part of its review responsibilities
under 23 U.S.C. 327, FHWA formed a
team in October 2017 to plan and
conduct an audit of NEPA
responsibilities DOT&PF assumed. Prior
to the on-site visit, the Audit Team
reviewed DOT&PF’s NEPA project
documentation, DOT&PF’s response to
FHWA’s pre-audit information request
(PAIR), and DOT&PF’s self-assessment
of its NEPA Program. The Audit Team
reviewed additional documents and
conducted interviews with DOT&PF
staff in Alaska on April 16–20, 2018.
The DOT&PF entered into the NEPA
Assignment Program after more than 8
years of experience making FHWA
NEPA CE determinations pursuant to 23
U.S.C. 326 (beginning September 22,
2009). The DOT&PF’s environmental
review procedures are compliant for
CEs, and DOT&PF is implementing
procedures and processes for CEs, EAs,
and EISs as part of its new
responsibilities under the NEPA
Assignment Program. Overall, the Audit
Team found that DOT&PF is
successfully adding CE, EA, and EIS
project review responsibilities to an
already successful CE review program.
The Audit Team identified one noncompliance observation, seven general
observations, as well as several
successful practices. The Audit Team
finds DOT&PF is carrying out the
responsibilities it has assumed and is in
compliance with the provisions of the
MOU.
Executive Summary
This report summarizes the results of
the Federal Highway Administration’s
(FHWA) first audit of the Alaska
DOT&PF NEPA review responsibilities
and obligations that FHWA has assigned
and DOT&PF has assumed pursuant to
23 United States Code (U.S.C.) 327.
Throughout this report, FHWA uses the
term ‘‘NEPA Assignment Program’’ to
refer to the program codified at 23
U.S.C. 327. Under the authority of 23
U.S.C. 327, DOT&PF and FHWA signed
a MOU on November 3, 2017, to
memorialize DOT&PF’s NEPA
Background
The NEPA Assignment Program
allows a State to assume FHWA’s
environmental responsibilities for
review, consultation, and compliance
for Federal-aid highway projects. Under
23 U.S.C. 327, a State that assumes these
Federal responsibilities becomes solely
responsible and solely liable for
carrying them out. Effective November
13, 2017, DOT&PF assumed FHWA’s
responsibilities under NEPA and other
related environmental laws. Examples
of responsibilities DOT&PF has assumed
in addition to NEPA include Section 7
considered comments and proceeded to
execute the MOU. Effective November
13, 2017, DOT&PF assumed FHWA’s
responsibilities under NEPA, and the
responsibilities for NEPA-related
Federal environmental laws described
in the MOU.
Section 327(g) of Title 23, U.S.C.,
requires the Secretary to conduct annual
audits during each of the first 4 years of
State participation. After the fourth
year, the Secretary shall monitor the
State’s compliance with the written
agreement. The results of each audit
must be made available for public
comment. This notice announces the
availability of the first audit report for
DOT&PF and solicits public comment
on same.
Authority: Section 1313 of Public Law
112–141; Section 6005 of Public Law 109–59;
23 U.S.C. 327; 23 CFR 773.
Issued on: August 28, 2018.
Brandye L. Hendrickson,
Deputy Administrator, Federal Highway
Administration.
Draft FHWA Audit of the Alaska
Department of Transportation
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consultation under the Endangered
Species Act (ESA) and consultation
under Section 106 of the National
Historic Preservation Act (NHPA).
Following this first audit, FHWA will
conduct three more annual audits to
satisfy provisions of 23 U.S.C. 327(g)
and Section 11 of the MOU. Audits are
the primary mechanism through which
FHWA may oversee DOT&PF’s
compliance with the MOU and the
NEPA Assignment Program
requirements. This includes ensuring
compliance with applicable Federal
laws and policies, evaluating DOT&PF’s
progress toward achieving the
performance measures identified in
MOU Section 10.2, and collecting
information needed for the Secretary’s
annual report to Congress. The FHWA
must present the results of each audit in
a report and make it available for public
comment in the Federal Register.
The Audit Team consisted of NEPA
subject matter experts from the FHWA
Alaska Division, as well as from FHWA
offices in Washington, District of
Columbia; Atlanta, Georgia; Sacramento,
California; and Lakewood, Colorado.
These experts received training on how
to evaluate implementation of the NEPA
Assignment Program. In addition, the
FHWA Alaska Division designated their
Environmental Program Manager to
serve as a NEPA Assignment Program
liaison to DOT&PF.
Scope and Methodology
The Audit Team conducted an
examination of DOT&PF’s NEPA project
files, DOT&PF responses to the PAIR,
and DOT&PF’s self-assessment. The
audit also included interviews with staff
and reviews of DOT&PF policies,
guidance, and manuals pertaining to
NEPA responsibilities. All reviews
focused on objectives related to the six
NEPA Assignment Program elements:
program management; documentation
and records management; quality
assurance/quality control (QA/QC);
legal sufficiency; training; and
performance measurement.
The focus of the audit was on
DOT&PF’s individual project
compliance and adherence to program
practices and procedures. Therefore,
while the Audit Team reviewed project
documentation to evaluate DOT&PF’s
NEPA process and procedures, the team
did not evaluate DOT&PF’s projectspecific decisions to determine if they
were, in FHWA’s opinion, correct or
not. The Audit Team reviewed NEPA
documents from 41 projects including
Programmatic CEs, CEs, EAs and Reevaluations, a representative sample of
all NEPA documents in process or
initiated after the MOU’s effective date.
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The Audit Team also interviewed
environmental staff in all three DOT&PF
regions as well as their headquarters
office.
The PAIR consisted of 66 questions
about specific elements in the MOU.
The Audit Team appreciates the efforts
of DOT&PF staff to meet the review
schedule in supplying their response.
These responses were used to develop
specific follow-up questions for the onsite interviews with DOT&PF staff.
The Audit Team conducted 22 on-site
and 6 phone interviews. Interviewees
included staff from each of DOT&PF’s
three regional offices and DOT&PF
headquarters. The Audit Team invited
DOT&PF staff, middle management, and
executive management to participate in
interviews to ensure the interviews
represented a diverse range of staff
expertise, experience, and program
responsibility.
Throughout the document reviews
and interviews, the Audit Team verified
information on the DOT&PF NEPA
Assignment Program including DOT&PF
policies, guidance, manuals, and
reports. This included the NEPA QA/QC
Plan, the NEPA Assignment Program
Training Plan, and the NEPA
Assignment Self-Assessment Report.
The Audit Team utilized information
obtained during interviews and project
file documentation reviews to consider
the State’s implementation of the
assignment program through DOT&PF
environmental manuals, procedures,
and policy. This audit is a compliance
review of DOT&PF’s adherence to their
own documented procedures in
compliance with the terms of the MOU.
The team documented observations
under the six NEPA Assignment
Program topic areas. Below are the audit
results.
Overall Audit Opinion
The Audit Team acknowledges
DOT&PF’s effort to establish written
internal policies and procedures for the
new responsibilities they have assumed.
This report identifies one noncompliant observation that DOT&PF
will need to address through corrective
action. These non-compliance
observations come from a review of
DOT&PF procedures, project file
documentation, and interview
information. This report also identifies
several notable observations and
successful practices that we recommend
be expanded. Overall, DOT&PF has
carried out the environmental
responsibilities it assumed through the
MOU and the application for the NEPA
Assignment Program, and as such the
Audit Team finds that DOT&PF is
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substantially compliant with the
provisions of the MOU.
Non-Compliance Observations
Non-compliance observations are
instances where the team found
DOT&PF was out of compliance or
deficient in proper implementation of a
Federal regulation, statute, guidance,
policy, the terms of the MOU, or
DOT&PF’s own procedures for
compliance with the NEPA process.
Such observations may also include
instances where DOT&PF has failed to
maintain technical competency,
adequate personnel, and/or financial
resources to carry out the assumed
responsibilities. Other non-compliance
observations could suggest a persistent
failure to adequately consult,
coordinate, or consider the concerns of
other Federal, State, Tribal, or local
agencies with oversight, consultation, or
coordination responsibilities. The
FHWA expects DOT&PF to develop and
implement corrective actions to address
all non-compliance observations. The
FHWA will conduct follow up reviews
of non-compliance observations in
Audit #2 from this review.
Observations and Successful Practices
This section summarizes the Audit
Team’s observations of DOT&PF’s NEPA
Assignment Program implementation,
including successful practices DOT&PF
may want to continue or expand.
Successful practices are positive results
that FHWA would like to commend
DOT&PF on developing. These may
include ideas or concepts that DOT&PF
has planned but not yet implemented.
Observations are items the Audit Team
would like to draw DOT&PF’s attention
to, which may benefit from revisions to
improve processes, procedures, or
outcomes. The DOT&PF may have
already taken steps to address or
improve upon the Audit Team’s
observations, but at the time of the audit
they appeared to be areas where
DOT&PF could make improvements.
This report addresses all six MOU topic
areas as separate discussions. Under
each area, this report discusses
successful practices followed by
observations.
This audit report provides an
opportunity for DOT&PF to begin
implementing actions to improve their
program. The FHWA will consider the
status of areas identified for potential
improvement in this audit’s
observations as part of the scope of
Audit #2. The second Audit Report will
include a summary discussion that
describes progress since the last audit.
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Program Management
The review team acknowledges the
DOT&PF’s efforts to accommodate their
environmental program to the 23 U.S.C.
327 responsibilities they have assumed.
These efforts include updating their
Environmental Procedures Manual,
developing and implementing an
expanded QA/QC Plan, establishing an
Environmental Program Training Plan,
and implementing a self-assessment
process identifying deficiencies that
were described and addressed in a
report.
Successful Practices
The Audit Team found that DOT&PF
has, overall, appropriately implemented
its project-level review and compliance
responsibility for CEs, EAs, and EISs.
The DOT&PF has established a vision
and direction for incorporating the
NEPA Assignment Program into its
overall project development process.
This was clear in the DOT&PF’s
responses to FHWA’s PAIR and in
interviews with staff in the regions and
at DOT&PF’s headquarters office,
commonly known as the Statewide
Environmental Office (SEO).
The DOT&PF increased
environmental staff in the SEO to
support the new responsibilities under
the NEPA Assignment Program. Staff at
SEO are responsible for the review of
some projects classified as CEs and all
projects classified as EAs and EISs.
Regional environmental staff coordinate
their NEPA work through Regional
Environmental Managers and NEPA
Program Managers at SEO. Some staff
responsibilities have changed under the
NEPA Assignment Program, but
positions have essentially remained
unchanged. Following assumption of
NEPA responsibilities, DOT&PF hired a
statewide NEPA Assignment Program
Manager who is responsible for
overseeing DOT&PF’s policies, manuals,
guidance, and training under the NEPA
Assignment Program.
The Audit Team would also like to
recognize DOT&PF efforts to bring a
lawyer into the early stages of project
development to ensure a legally
defensible document.
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Non-Compliance Observation #1:
Opportunity of a Public Hearing
Section 7.2.1 of the MOU requires the
DOT&PF to develop procedures to
implement the responsibilities assumed.
This review identified one example of
deficient adherence to these State
procedures. This Audit Team identified
one project file where DOT&PF did not
offer the opportunity for a public
hearing for the release of the Draft EA
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consistent with its own public
involvement procedures in the January
2005 Preconstruction Manual Section
520.4.1 or the February 2018
Environmental Procedures Manual
Section 4.4.2. The Audit Team
confirmed with SEO that although
public meetings were held, no
opportunity for a public hearing was
provided.
Observation #1: Programmatic Section
106 Compliance and Section 4(f)
Compliance
The DOT&PF’s November 2017
Section 106 Programmatic Agreement
(PA) established an alternate procedure
for Section 106 compliance in Alaska
which allows the use of a streamlined
process. The Audit Team identified a
risk to DOT&PF in the application of
their Section 106 PA to projects that
require integrating the Section 106
process results to comply with the
requirements of Section 4(f).
a. The PA notes that the streamlined
process is applicable to projects with
low potential to affect historic
properties. The DOT&PF staff
characterized how they apply the
streamlined Section 106 process to
individual projects as ones that result in
little or no potential to affect historic
properties. The DOT&PF project
documentation for the streamlined
Section 106 compliance is a form that
does not identify either a project effect
or the effect to a specific historic
property.
b. Because the use of the streamlined
form does not identify a Section 106
effect for any individual historic
property, the DOT&PF documentation
cannot support any required Section 4(f)
de minimis impact determinations. (see
23 CFR 774.5(b)(1))
Observation #2: Lack of a process to
implement planning consistency at time
of a NEPA decision
Section 3.3.1 of the MOU requires
DOT&PF to, at the time they make a
NEPA approval (CE determination,
finding of no significant impact, or
record of decision) check to ensure that
the project’s design concept, scope, and
funding is consistent with current
planning documents. Reviews of project
documents provided no evidence that
DOT&PF staff had reviewed planning
documents for availability of funding.
Through interviews it was clear that
their understanding of this requirement
varied. Through reviews of DOT&PF
manuals, the Audit Team could not find
a procedure for staff to follow so that at
the time staff makes a NEPA approval,
they are also checking (and
documenting) that the project’s design
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concept, scope, and funding is
consistent with planning documents.
Observation #3: Staff Capacity
Sections 4.2.1 and 4.2.2 discuss the
State’s commitment of resources and
adequate organizational and staff
capability. Several DOT&PF staff
explained through interviews, that since
the State’s entry into the full NEPA
Assignment Program, their required
review and documentation efforts
dramatically increased. We learned from
two region office staff that, because of
the increased workload, the region
office did not have sufficient resources
to manage the workload associated with
the NEPA Assignment Program. A
related concern was the challenge in
retaining qualified staff, possibly
leading to a delay in project delivery.
(MOU Section 4.2.1 and 4.2.2)
Observation #4: Government-toGovernment Consultation
Section 3.2.3 of the MOU excludes
assignment of the responsibility for
Government-to-Government
consultation with Tribes, to DOT&PF.
The Audit Team learned through
interviews, and a check of DOT&PF’s
environmental manual, that the
DOT&PF has no written procedures on
how its staff are to accommodate a
Tribal request for Government-toGovernment consultation with FHWA.
Through interviews it was apparent that
DOT&PF’s staff has an inconsistent
understanding of how to handle this
scenario. Staff indicated they would like
written guidance that addresses the
process that includes FHWA’s role.
(MOU Section 3.2.3)
Documentation and Records
Management
The NEPA Assignment Program
became effective on November 13, 2017.
From that effective date through
February 28, 2018, the DOT&PF made
56 project decisions. By employing both
judgmental and random sampling
methods, the Audit Team reviewed
NEPA project documentation for 41 of
these decisions.
Successful Practices
The Audit Team recognizes several
efforts to improve consistency of filing
project documentation learned through
project documentation reviews and
interviews. These include: the use of a
standardized electronic folder structure
developed by Central Region; a
spreadsheet template used in Central
Region to manage tasks and standardize
filing of project documents; and
Southcoast Region utilizing a document
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specialist to ensure that project files are
complete.
The Audit Team would also like to
commend DOT&PF’s use of the optional
23 CFR 771.117(e) form for CE projects
classified as c(26), c(27), or c(28)
because it clearly and efficiently
demonstrates that the conditions
required for the project to be processed
as a ‘‘c-list’’ CE have been met. We urge
DOT&PF management to consider
making this form a required part of CE
documentation.
Observation #5: Section 106 Compliance
Section 5.1.1 of the MOU requires the
State to follow Federal laws,
regulations, policy, and procedures to
implement the responsibilities assumed,
and Section 4.2.3 specifically calls out
requirements pertaining to historic
properties. This review identified two
examples of deficient adherence to these
Federal Section 106 compliance
procedures. The regulations that
implement Section 106 of the NHPA
require the Agency Official to consider
the impacts of their undertaking on
historic properties and to afford the
State Historic Preservation Officer
(SHPO) an opportunity to comment.
Through project file reviews, the Audit
Team identified one instance where the
Section 106 review did not consider the
full extent of the project’s undertaking.
This was a project where an off-ramp
bypass lane was added to the project but
was not considered as part of Section
106 compliance. Note that this error was
also discovered by DOT&PF during their
self-assessment and corrective action
has been completed. In the second
instance, the review of project file
documentation revealed that DOT&PF
incorrectly made a decision that Section
106 compliance requirements to make
an effect determination did not apply.
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Quality Assurance/Quality Control
The Audit Team recognizes that the
DOT&PF is in the early stages of the
NEPA Assignment Program. However,
the Audit Team made the following
observations related to QA/QC.
Successful Practices
The MOU requires the DOT&PF to
conduct an annual self-assessment of its
QA/QC process and performance. The
Audit Team found the DOT&PF’s selfassessment report to be well-written and
comprehensive with in-depth analyses.
This documents their commitment to
implementing a compliant NEPA
Assignment Program.
The Audit Team would like to
recognize the SEO’s use of the QA/QC
database for tracking QA/QC reviews.
This allows them to quantify the review
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results to better identify trends or areas
of concern that should be addressed.
The Audit Team learned through
interviews that the Section 106
professionally qualified individuals in
SEO review the information the regions
submit to the SHPO. The SEO staff said
that the records were adequate overall,
but occasional follow up with
individual regions was necessary to
increase the clarity and address possible
omissions. This SEO feedback should
result in increased consistency and
clarity in Section 106 documentation
subject to interagency review.
Observation #6: QC staff roles and
responsibilities
The DOT&PF’s QA/QC plan identifies
a Project Development Team who would
review documents to ensure
consistency, conciseness, and overall
quality, but it does not discuss specific
responsibilities of individual members
for the QA/QC process. In addition, staff
did not consistently articulate the QA/
QC responsibilities of the Project
Development Team members. The Audit
Team would like to draw the DOT&PF’s
attention to what appears to be an
inconsistent awareness of the use of
Project Development Teams and the
roles and responsibilities of team
members for QC.
Training Program
Per MOU Section 12 Training, the
DOT&PF committed to implementing
training necessary to meet its
environmental obligations assumed
under the NEPA Assignment Program.
As required in the MOU the DOT&PF
also committed to assessing its need for
training, developing a training plan, and
updating the training plan on an annual
basis in consultation with FHWA and
other Federal Agencies as deemed
appropriate.
The DOT&PF developed the 2018
Environmental Program Training Plan to
fulfill the requirements of Section 12 of
the MOU. The 2018 Environmental
Program Training Plan is a
comprehensive document that addresses
a number of issues related to training
including:
• a variety of in-person and virtual
training methods that could be used by
DOT&PF;
• the timing of, and approach to,
updating the 2018 Environmental
Program Training Plan;
• the development of an individual
training plan (ITP) that outlines both
mandatory and non-mandatory training;
• the training and experience the
employees must acquire to be
considered for promotion; and
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45185
• maintaining a record of trainings
that were taken by employees in the last
3 years and their anticipated training
requests for the upcoming year.
Successful Practices
Tracking environmental training is
required by the DOT&PF’s 2018
Environmental Program Training Plan.
One PD&E Chief shared a spreadsheet
developed to track all the training taken
by his staff, including environmental
courses. The Audit Team believes this
tool will help ensure employees
received required training to advance
the NEPA Assignment Program.
Observations:
Observation #7: Training Program
MOU Sections 12.2, 4.2.2 and 4.2.3
require the DOT&PF to retain staff and
the organizational capacity to
implement their program and to
implement training. Training often is an
important tool for attaining and
maintaining staff and organizational
capacity. The Audit Team asked
DOT&PF staff to share their perceptions
about the training requirements in the
plan; the adequacy of the training
budget; and how training relates to their
job responsibilities, performance, and
employee development and promotion.
The Audit Team urges the DOT&PF to
consider ways to accommodate training
needs and consider various approaches
to deliver necessary training in a timely
manner:
a) Regarding training requirements,
some interviewees said that the
DOT&PF’s training plan requirements
were unrealistic because either: 1) staff
was too busy working on projects to
have the time to complete the training
courses identified in the plan; or 2)
given the turnover rates in their office
and the frequency of training offered,
employees were unlikely to get all
required training during their tenure.
The Audit Team considers the plan to
be realistic and urges the DOT&PF to
consider ways to address these
challenges.
b) Regarding the training budget,
interview responses revealed no
consensus. The DOT&PF management
indicated a strong desire to have a
robust NEPA program and some
interviewees responded that they felt
that the training budget was adequate.
However, responses from other
interviewees indicated that the training
budget was inadequate, especially as it
relates to travel. The Audit Team was
unable to resolve whether the budget
was inadequate and will consider this
issue again in the next audit.
c) The 2018 Environmental Program
Training Plan links training to employee
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development and promotion. Interviews
revealed: (1) inconsistent preparation
and use of an ITP as is required for
employees; (2) perceptions that training
requirements for flexing from an
Analyst 1 to Analyst 2 position are
clearly spelled out, but not for
advancement beyond an Analyst 2
position; (3) concerns that training
opportunities are too limited or not
available; and (4) some employees have
not had a performance review in several
years. Based on this input, the Audit
Team suggests that the DOT&PF focus
on additional ways to improve
implementation of their Training Plan.
d) Regarding training needs, DOT&PF
staff indicated a need for Section 4(f)
training, according to interviews in all
three regions and SEO. Multiple
interviewees also identified a need for
training in noise and floodplains.
Training needs cited at a lesser
frequency included ESA, cumulative
effects, Section 408, EA/EIS, QA/QC,
Planning and Environmental Linkages,
stream enhancement, NEPA, conflict
resolution and mediation. Given that the
DOT&PF is now implementing
additional environmental review
responsibilities based on the MOU, and
staff recognize the need to be prepared
to embrace those responsibilities, the
Audit Team urges the DOT&PF to
address these training needs
expeditiously, and be sensitive to
ongoing training needs.
Performance Measures
The DOT&PF has demonstrated it has
taken an active interest in developing,
monitoring, and implementing the
performance measures required by the
MOU. The March 21, 2018, DOT&PF
NEPA Assignment Self-Assessment
Summary Report contained the results
of the DOT&PF’s first report of its
assessment of NEPA Assignment and
DOT&PF procedures compliance. The
DOT&PF’s March 1, 2017, response to
FHWA’s PAIR included answers to
questions posed on performance
measures. Because of the information
provided in these two documents,
combined with the fact that a relatively
brief period of time has transpired since
the MOU became effective, the Audit
Team has not identified any
observations or successful practices
here. However, the following discussion
describes the current status of the
DOT&PF’s performance measures.
The DOT&PF’s performance measure
to assess change in communication
among the DOT&PF, Federal and State
resource agencies, and the public
resulting from assumption of
responsibilities under this MOU was
based on the experience of a single EA
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17:04 Sep 04, 2018
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project, according to DOT&PF’s selfassessment summary report. Through
interviews, the Audit Team learned that
the DOT&PF believes the resource
agencies will observe little change in
communication and consultation
because DOT&PF had been operating
under a 23 U.S.C. 326 MOU since
September 2009.
The DOT&PF’s self-assessment
summary report suggests some early
efficiencies have been observed, but the
consensus from interviews was that it is
too early to determine if substantial
increased efficiencies and timeliness
will result from the program. Some
individuals indicated that over time the
program should result in increased
efficiencies and timeliness.
Through interviews, the Audit Team
learned that data for performance
measures are being collected and
presented quarterly to DOT&PF
management for use in decisionmaking.
Also, that DOT&PF believes the existing
performance measures are
comprehensive and adequate. The
DOT&PF leadership said that
performances measures will be
evaluated annually to determine if
adjustment is needed.
Legal Sufficiency
Interviews with both staff and
management attorneys emphasized the
legal sufficiency review process
emulated FHWA’s ‘‘early legal
involvement’’ concept, i.e., bringing a
lawyer onto the reviewing team at an
early stage in project development. We
learned that DOT&PF staff do not need
to go through management to talk to an
attorney, but may call or email at any
time (and, with regard to EAs, have
done so under NEPA Assignment).
Management noted specific review steps
are to take place at the both draft and
final stages for assigned EISs and
Individual Section 4(f) Evaluations.
At this time, the Alaska Department of
Law (DOL) expressed no intention of
expanding the number of staff attorneys
assigned to document review; however,
it has a contingency plan should
workload increase significantly in
future. Specifically, should DOT&PF be
sued over an assigned project, DOL
tentatively intends to contract with
outside counsel (per 23 U.S.C.
327[a][2][G]) to handle the litigation
rather than make a single staff attorney
divide his time between document
review and defending the case. The
Transportation Section attorney would
act as support counsel to the litigators
in a manner similar to the way FHWA
counsel provide litigation support to the
U.S. Department of Justice when it
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Fmt 4703
Sfmt 4703
defends FHWA’s environmental
decisions in court. (MOU Section 6.1.1)
Next Steps
The FHWA provided this draft audit
report to DOT&PF for a 14-day review
and comment period. The Audit Team
considered DOT&PF comments in
developing this draft audit report. The
FHWA will publish a notice in the
Federal Register for a 30-day comment
period in accordance with 23 U.S.C.
327(g). No later than 60 days after the
close of the comment period, FHWA
will respond to all comments submitted
to finalize this draft audit report
pursuant to 23 U.S.C. 327(g)(B). The
FHWA will publish the final audit
report in the Federal Register.
[FR Doc. 2018–19184 Filed 9–4–18; 8:45 am]
BILLING CODE 4910–22–P
DEPARTMENT OF THE TREASURY
Community Development Financial
Institutions Fund
Notice of Information Collection and
Request for Public Comment
Notice and request for public
comment.
ACTION:
The Department of the
Treasury, as part of its continuing effort
to reduce paperwork and respondent
burden, invites the general public and
other Federal agencies to take this
opportunity to comment on proposed
and/or continuing information
collections, as required by the
Paperwork Reduction Act of 1995,
Public Law 104–13. Currently, the
Community Development Financial
Institutions Fund (CDFI Fund),
Department of the Treasury, is soliciting
comments concerning the Community
Development Financial Institutions
Program—Certification Application,
which will be submitted through the
Awards Management Information
System (AMIS).
DATES: Written comments must be
received on or before November 5, 2018
to be assured of consideration.
ADDRESSES: Submit your comments via
email to Tanya McInnis, Acting Program
Manager for the Office of Certification,
Compliance Monitoring and Evaluation,
CDFI Fund, at ccme@cdfi.treas.gov.
FOR FURTHER INFORMATION CONTACT:
Tanya McInnis, Acting Program
Manager for the Office of Certification,
Compliance Monitoring and Evaluation,
Community Development Financial
Institutions Fund, U.S. Department of
the Treasury, 1500 Pennsylvania Ave.
NW, Washington DC 20220 or by phone
SUMMARY:
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]]>Agencies
[Federal Register Volume 83, Number 172 (Wednesday, September 5, 2018)]
[Notices]
[Pages 45181-45186]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-19184]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
[FHWA Docket No. FHWA-2018-0040]
Surface Transportation Project Delivery Program; Alaska
Department of Transportation Audit Report
AGENCY: Federal Highway Administration (FHWA), U.S. Department of
Transportation (DOT).
ACTION: Notice; Request for comment.
-----------------------------------------------------------------------
SUMMARY: The Moving Ahead for Progress in the 21st Century Act (MAP-21)
established the Surface Transportation Project Delivery Program that
allows a State to assume FHWA's environmental responsibilities for
environmental review, consultation, and compliance under the National
Environmental Policy Act (NEPA) for Federal highway projects. When a
State assumes these Federal responsibilities, the State becomes solely
responsible and liable for the responsibilities it has assumed, in lieu
of FHWA. This program mandates annual audits during each of the first 4
years to ensure the State's compliance with program requirements. This
notice announces and solicits comments on the first audit report for
the Alaska Department of Transportation and Public Facilities (DOT&PF).
DATES: Comments must be received on or before October 5, 2018.
ADDRESSES: Mail or hand deliver comments to Docket Management Facility:
U.S. Department of Transportation, 1200 New Jersey Avenue SE, Room W12-
140, Washington, DC 20590. You may also submit comments electronically
at www.regulations.gov. All comments should include the docket number
that appears in the heading of this document. All comments received
will be available for examination and copying at the above address from
9 a.m. to 5 p.m., e.t., Monday through Friday, except Federal holidays.
Those desiring notification of receipt of
[[Page 45182]]
comments must include a self-addressed, stamped postcard or you may
print the acknowledgment page that appears after submitting comments
electronically. Anyone can search the electronic form of all comments
in any of our dockets by the name of the individual submitting the
comment (or signing the comment, if submitted on behalf of an
association, business, or labor union). The DOT posts these comments,
without edits, including any personal information the commenter
provides, to www.regulations.gov, as described in the system of records
notice (DOT/ALL-14 FDMS), which can be reviewed at www.dot.gov/privacy.
FOR FURTHER INFORMATION CONTACT: Mr. David T. Williams, Office of
Project Development and Environmental Review, (202) 366-4074,
[email protected], or Mr. Jomar Maldonado, Office of the Chief
Counsel, (202) 366-1373, [email protected], Federal Highway
Administration, Department of Transportation, 1200 New Jersey Avenue
SE, Washington, DC 20590. Office hours are from 8:00 a.m. to 4:30 p.m.,
e.t., Monday through Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION:
Electronic Access
An electronic copy of this notice may be downloaded from the
specific docket page at www.regulations.gov.
Background
The Surface Transportation Project Delivery Program, codified at 23
United States Code (U.S.C.) 327, commonly known as the NEPA Assignment
Program, allows a State to assume FHWA's environmental responsibilities
for review, consultation, and compliance for Federal highway projects.
When a State assumes these Federal responsibilities, the State becomes
solely liable for carrying out the responsibilities, in lieu of the
FHWA. The DOT&PF published its application for NEPA assumption on May
1, 2016, and made it available for public comment for 30 days. After
considering public comments, DOT&PF submitted its application to FHWA
on July 12, 2016. The application served as the basis for developing a
Memorandum of Understanding (MOU) that identifies the responsibilities
and obligations that the DOT&PF would assume. The FHWA published a
notice of the draft MOU in the Federal Register on August 25, 2017,
with a 30-day comment period to solicit the views of the public and
Federal Agencies. After the end of the comment period, FHWA and DOT&PF
considered comments and proceeded to execute the MOU. Effective
November 13, 2017, DOT&PF assumed FHWA's responsibilities under NEPA,
and the responsibilities for NEPA-related Federal environmental laws
described in the MOU.
Section 327(g) of Title 23, U.S.C., requires the Secretary to
conduct annual audits during each of the first 4 years of State
participation. After the fourth year, the Secretary shall monitor the
State's compliance with the written agreement. The results of each
audit must be made available for public comment. This notice announces
the availability of the first audit report for DOT&PF and solicits
public comment on same.
Authority: Section 1313 of Public Law 112-141; Section 6005 of
Public Law 109-59; 23 U.S.C. 327; 23 CFR 773.
Issued on: August 28, 2018.
Brandye L. Hendrickson,
Deputy Administrator, Federal Highway Administration.
Draft FHWA Audit of the Alaska Department of Transportation
April 16-20, 2018
The Audit Team finds Alaska Department of Transportation and Public
Facilities (DOT&PF) is carrying out the National Environmental Policy
Act (NEPA) Assignment Program responsibilities (assumed November 2017)
and is compliant with the provisions of the NEPA Assignment Program
Memorandum of Understanding (MOU). The Alaska DOT&PF has established
written internal policies and procedures for the assumed Federal
responsibilities. Following 5 months after execution of the MOU, the
Audit Team identified one non-compliance observation, seven general
observations, and six successful practices. Overall, DOT&PF has carried
out the environmental responsibilities it assumed through the MOU and
the application for the NEPA Assignment Program.
Executive Summary
This report summarizes the results of the Federal Highway
Administration's (FHWA) first audit of the Alaska DOT&PF NEPA review
responsibilities and obligations that FHWA has assigned and DOT&PF has
assumed pursuant to 23 United States Code (U.S.C.) 327. Throughout this
report, FHWA uses the term ``NEPA Assignment Program'' to refer to the
program codified at 23 U.S.C. 327. Under the authority of 23 U.S.C.
327, DOT&PF and FHWA signed a MOU on November 3, 2017, to memorialize
DOT&PF's NEPA responsibilities and liabilities for Federal-aid highway
projects and certain other FHWA approvals for transportation projects
in Alaska. Except for three projects, which FHWA retained, FHWA's only
NEPA responsibilities in Alaska are oversight and review of how DOT&PF
executes its NEPA Assignment Program obligations. The MOU covers
environmental review responsibilities for projects that require the
preparation of environmental assessments (EAs), environmental impact
statements (EIS), and categorical exclusions (CE).
As part of its review responsibilities under 23 U.S.C. 327, FHWA
formed a team in October 2017 to plan and conduct an audit of NEPA
responsibilities DOT&PF assumed. Prior to the on-site visit, the Audit
Team reviewed DOT&PF's NEPA project documentation, DOT&PF's response to
FHWA's pre-audit information request (PAIR), and DOT&PF's self-
assessment of its NEPA Program. The Audit Team reviewed additional
documents and conducted interviews with DOT&PF staff in Alaska on April
16-20, 2018.
The DOT&PF entered into the NEPA Assignment Program after more than
8 years of experience making FHWA NEPA CE determinations pursuant to 23
U.S.C. 326 (beginning September 22, 2009). The DOT&PF's environmental
review procedures are compliant for CEs, and DOT&PF is implementing
procedures and processes for CEs, EAs, and EISs as part of its new
responsibilities under the NEPA Assignment Program. Overall, the Audit
Team found that DOT&PF is successfully adding CE, EA, and EIS project
review responsibilities to an already successful CE review program. The
Audit Team identified one non-compliance observation, seven general
observations, as well as several successful practices. The Audit Team
finds DOT&PF is carrying out the responsibilities it has assumed and is
in compliance with the provisions of the MOU.
Background
The NEPA Assignment Program allows a State to assume FHWA's
environmental responsibilities for review, consultation, and compliance
for Federal-aid highway projects. Under 23 U.S.C. 327, a State that
assumes these Federal responsibilities becomes solely responsible and
solely liable for carrying them out. Effective November 13, 2017,
DOT&PF assumed FHWA's responsibilities under NEPA and other related
environmental laws. Examples of responsibilities DOT&PF has assumed in
addition to NEPA include Section 7
[[Page 45183]]
consultation under the Endangered Species Act (ESA) and consultation
under Section 106 of the National Historic Preservation Act (NHPA).
Following this first audit, FHWA will conduct three more annual
audits to satisfy provisions of 23 U.S.C. 327(g) and Section 11 of the
MOU. Audits are the primary mechanism through which FHWA may oversee
DOT&PF's compliance with the MOU and the NEPA Assignment Program
requirements. This includes ensuring compliance with applicable Federal
laws and policies, evaluating DOT&PF's progress toward achieving the
performance measures identified in MOU Section 10.2, and collecting
information needed for the Secretary's annual report to Congress. The
FHWA must present the results of each audit in a report and make it
available for public comment in the Federal Register.
The Audit Team consisted of NEPA subject matter experts from the
FHWA Alaska Division, as well as from FHWA offices in Washington,
District of Columbia; Atlanta, Georgia; Sacramento, California; and
Lakewood, Colorado. These experts received training on how to evaluate
implementation of the NEPA Assignment Program. In addition, the FHWA
Alaska Division designated their Environmental Program Manager to serve
as a NEPA Assignment Program liaison to DOT&PF.
Scope and Methodology
The Audit Team conducted an examination of DOT&PF's NEPA project
files, DOT&PF responses to the PAIR, and DOT&PF's self-assessment. The
audit also included interviews with staff and reviews of DOT&PF
policies, guidance, and manuals pertaining to NEPA responsibilities.
All reviews focused on objectives related to the six NEPA Assignment
Program elements: program management; documentation and records
management; quality assurance/quality control (QA/QC); legal
sufficiency; training; and performance measurement.
The focus of the audit was on DOT&PF's individual project
compliance and adherence to program practices and procedures.
Therefore, while the Audit Team reviewed project documentation to
evaluate DOT&PF's NEPA process and procedures, the team did not
evaluate DOT&PF's project-specific decisions to determine if they were,
in FHWA's opinion, correct or not. The Audit Team reviewed NEPA
documents from 41 projects including Programmatic CEs, CEs, EAs and Re-
evaluations, a representative sample of all NEPA documents in process
or initiated after the MOU's effective date. The Audit Team also
interviewed environmental staff in all three DOT&PF regions as well as
their headquarters office.
The PAIR consisted of 66 questions about specific elements in the
MOU. The Audit Team appreciates the efforts of DOT&PF staff to meet the
review schedule in supplying their response. These responses were used
to develop specific follow-up questions for the on-site interviews with
DOT&PF staff.
The Audit Team conducted 22 on-site and 6 phone interviews.
Interviewees included staff from each of DOT&PF's three regional
offices and DOT&PF headquarters. The Audit Team invited DOT&PF staff,
middle management, and executive management to participate in
interviews to ensure the interviews represented a diverse range of
staff expertise, experience, and program responsibility.
Throughout the document reviews and interviews, the Audit Team
verified information on the DOT&PF NEPA Assignment Program including
DOT&PF policies, guidance, manuals, and reports. This included the NEPA
QA/QC Plan, the NEPA Assignment Program Training Plan, and the NEPA
Assignment Self-Assessment Report.
The Audit Team utilized information obtained during interviews and
project file documentation reviews to consider the State's
implementation of the assignment program through DOT&PF environmental
manuals, procedures, and policy. This audit is a compliance review of
DOT&PF's adherence to their own documented procedures in compliance
with the terms of the MOU. The team documented observations under the
six NEPA Assignment Program topic areas. Below are the audit results.
Overall Audit Opinion
The Audit Team acknowledges DOT&PF's effort to establish written
internal policies and procedures for the new responsibilities they have
assumed. This report identifies one non-compliant observation that
DOT&PF will need to address through corrective action. These non-
compliance observations come from a review of DOT&PF procedures,
project file documentation, and interview information. This report also
identifies several notable observations and successful practices that
we recommend be expanded. Overall, DOT&PF has carried out the
environmental responsibilities it assumed through the MOU and the
application for the NEPA Assignment Program, and as such the Audit Team
finds that DOT&PF is substantially compliant with the provisions of the
MOU.
Non-Compliance Observations
Non-compliance observations are instances where the team found
DOT&PF was out of compliance or deficient in proper implementation of a
Federal regulation, statute, guidance, policy, the terms of the MOU, or
DOT&PF's own procedures for compliance with the NEPA process. Such
observations may also include instances where DOT&PF has failed to
maintain technical competency, adequate personnel, and/or financial
resources to carry out the assumed responsibilities. Other non-
compliance observations could suggest a persistent failure to
adequately consult, coordinate, or consider the concerns of other
Federal, State, Tribal, or local agencies with oversight, consultation,
or coordination responsibilities. The FHWA expects DOT&PF to develop
and implement corrective actions to address all non-compliance
observations. The FHWA will conduct follow up reviews of non-compliance
observations in Audit #2 from this review.
Observations and Successful Practices
This section summarizes the Audit Team's observations of DOT&PF's
NEPA Assignment Program implementation, including successful practices
DOT&PF may want to continue or expand. Successful practices are
positive results that FHWA would like to commend DOT&PF on developing.
These may include ideas or concepts that DOT&PF has planned but not yet
implemented. Observations are items the Audit Team would like to draw
DOT&PF's attention to, which may benefit from revisions to improve
processes, procedures, or outcomes. The DOT&PF may have already taken
steps to address or improve upon the Audit Team's observations, but at
the time of the audit they appeared to be areas where DOT&PF could make
improvements. This report addresses all six MOU topic areas as separate
discussions. Under each area, this report discusses successful
practices followed by observations.
This audit report provides an opportunity for DOT&PF to begin
implementing actions to improve their program. The FHWA will consider
the status of areas identified for potential improvement in this
audit's observations as part of the scope of Audit #2. The second Audit
Report will include a summary discussion that describes progress since
the last audit.
[[Page 45184]]
Program Management
The review team acknowledges the DOT&PF's efforts to accommodate
their environmental program to the 23 U.S.C. 327 responsibilities they
have assumed. These efforts include updating their Environmental
Procedures Manual, developing and implementing an expanded QA/QC Plan,
establishing an Environmental Program Training Plan, and implementing a
self-assessment process identifying deficiencies that were described
and addressed in a report.
Successful Practices
The Audit Team found that DOT&PF has, overall, appropriately
implemented its project-level review and compliance responsibility for
CEs, EAs, and EISs. The DOT&PF has established a vision and direction
for incorporating the NEPA Assignment Program into its overall project
development process. This was clear in the DOT&PF's responses to FHWA's
PAIR and in interviews with staff in the regions and at DOT&PF's
headquarters office, commonly known as the Statewide Environmental
Office (SEO).
The DOT&PF increased environmental staff in the SEO to support the
new responsibilities under the NEPA Assignment Program. Staff at SEO
are responsible for the review of some projects classified as CEs and
all projects classified as EAs and EISs. Regional environmental staff
coordinate their NEPA work through Regional Environmental Managers and
NEPA Program Managers at SEO. Some staff responsibilities have changed
under the NEPA Assignment Program, but positions have essentially
remained unchanged. Following assumption of NEPA responsibilities,
DOT&PF hired a statewide NEPA Assignment Program Manager who is
responsible for overseeing DOT&PF's policies, manuals, guidance, and
training under the NEPA Assignment Program.
The Audit Team would also like to recognize DOT&PF efforts to bring
a lawyer into the early stages of project development to ensure a
legally defensible document.
Non-Compliance Observation #1: Opportunity of a Public Hearing
Section 7.2.1 of the MOU requires the DOT&PF to develop procedures
to implement the responsibilities assumed. This review identified one
example of deficient adherence to these State procedures. This Audit
Team identified one project file where DOT&PF did not offer the
opportunity for a public hearing for the release of the Draft EA
consistent with its own public involvement procedures in the January
2005 Preconstruction Manual Section 520.4.1 or the February 2018
Environmental Procedures Manual Section 4.4.2. The Audit Team confirmed
with SEO that although public meetings were held, no opportunity for a
public hearing was provided.
Observation #1: Programmatic Section 106 Compliance and Section 4(f)
Compliance
The DOT&PF's November 2017 Section 106 Programmatic Agreement (PA)
established an alternate procedure for Section 106 compliance in Alaska
which allows the use of a streamlined process. The Audit Team
identified a risk to DOT&PF in the application of their Section 106 PA
to projects that require integrating the Section 106 process results to
comply with the requirements of Section 4(f).
a. The PA notes that the streamlined process is applicable to
projects with low potential to affect historic properties. The DOT&PF
staff characterized how they apply the streamlined Section 106 process
to individual projects as ones that result in little or no potential to
affect historic properties. The DOT&PF project documentation for the
streamlined Section 106 compliance is a form that does not identify
either a project effect or the effect to a specific historic property.
b. Because the use of the streamlined form does not identify a
Section 106 effect for any individual historic property, the DOT&PF
documentation cannot support any required Section 4(f) de minimis
impact determinations. (see 23 CFR 774.5(b)(1))
Observation #2: Lack of a process to implement planning consistency at
time of a NEPA decision
Section 3.3.1 of the MOU requires DOT&PF to, at the time they make
a NEPA approval (CE determination, finding of no significant impact, or
record of decision) check to ensure that the project's design concept,
scope, and funding is consistent with current planning documents.
Reviews of project documents provided no evidence that DOT&PF staff had
reviewed planning documents for availability of funding. Through
interviews it was clear that their understanding of this requirement
varied. Through reviews of DOT&PF manuals, the Audit Team could not
find a procedure for staff to follow so that at the time staff makes a
NEPA approval, they are also checking (and documenting) that the
project's design concept, scope, and funding is consistent with
planning documents.
Observation #3: Staff Capacity
Sections 4.2.1 and 4.2.2 discuss the State's commitment of
resources and adequate organizational and staff capability. Several
DOT&PF staff explained through interviews, that since the State's entry
into the full NEPA Assignment Program, their required review and
documentation efforts dramatically increased. We learned from two
region office staff that, because of the increased workload, the region
office did not have sufficient resources to manage the workload
associated with the NEPA Assignment Program. A related concern was the
challenge in retaining qualified staff, possibly leading to a delay in
project delivery. (MOU Section 4.2.1 and 4.2.2)
Observation #4: Government-to-Government Consultation
Section 3.2.3 of the MOU excludes assignment of the responsibility
for Government-to-Government consultation with Tribes, to DOT&PF. The
Audit Team learned through interviews, and a check of DOT&PF's
environmental manual, that the DOT&PF has no written procedures on how
its staff are to accommodate a Tribal request for Government-to-
Government consultation with FHWA. Through interviews it was apparent
that DOT&PF's staff has an inconsistent understanding of how to handle
this scenario. Staff indicated they would like written guidance that
addresses the process that includes FHWA's role. (MOU Section 3.2.3)
Documentation and Records Management
The NEPA Assignment Program became effective on November 13, 2017.
From that effective date through February 28, 2018, the DOT&PF made 56
project decisions. By employing both judgmental and random sampling
methods, the Audit Team reviewed NEPA project documentation for 41 of
these decisions.
Successful Practices
The Audit Team recognizes several efforts to improve consistency of
filing project documentation learned through project documentation
reviews and interviews. These include: the use of a standardized
electronic folder structure developed by Central Region; a spreadsheet
template used in Central Region to manage tasks and standardize filing
of project documents; and Southcoast Region utilizing a document
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specialist to ensure that project files are complete.
The Audit Team would also like to commend DOT&PF's use of the
optional 23 CFR 771.117(e) form for CE projects classified as c(26),
c(27), or c(28) because it clearly and efficiently demonstrates that
the conditions required for the project to be processed as a ``c-list''
CE have been met. We urge DOT&PF management to consider making this
form a required part of CE documentation.
Observation #5: Section 106 Compliance
Section 5.1.1 of the MOU requires the State to follow Federal laws,
regulations, policy, and procedures to implement the responsibilities
assumed, and Section 4.2.3 specifically calls out requirements
pertaining to historic properties. This review identified two examples
of deficient adherence to these Federal Section 106 compliance
procedures. The regulations that implement Section 106 of the NHPA
require the Agency Official to consider the impacts of their
undertaking on historic properties and to afford the State Historic
Preservation Officer (SHPO) an opportunity to comment. Through project
file reviews, the Audit Team identified one instance where the Section
106 review did not consider the full extent of the project's
undertaking. This was a project where an off-ramp bypass lane was added
to the project but was not considered as part of Section 106
compliance. Note that this error was also discovered by DOT&PF during
their self-assessment and corrective action has been completed. In the
second instance, the review of project file documentation revealed that
DOT&PF incorrectly made a decision that Section 106 compliance
requirements to make an effect determination did not apply.
Quality Assurance/Quality Control
The Audit Team recognizes that the DOT&PF is in the early stages of
the NEPA Assignment Program. However, the Audit Team made the following
observations related to QA/QC.
Successful Practices
The MOU requires the DOT&PF to conduct an annual self-assessment of
its QA/QC process and performance. The Audit Team found the DOT&PF's
self-assessment report to be well-written and comprehensive with in-
depth analyses. This documents their commitment to implementing a
compliant NEPA Assignment Program.
The Audit Team would like to recognize the SEO's use of the QA/QC
database for tracking QA/QC reviews. This allows them to quantify the
review results to better identify trends or areas of concern that
should be addressed.
The Audit Team learned through interviews that the Section 106
professionally qualified individuals in SEO review the information the
regions submit to the SHPO. The SEO staff said that the records were
adequate overall, but occasional follow up with individual regions was
necessary to increase the clarity and address possible omissions. This
SEO feedback should result in increased consistency and clarity in
Section 106 documentation subject to interagency review.
Observation #6: QC staff roles and responsibilities
The DOT&PF's QA/QC plan identifies a Project Development Team who
would review documents to ensure consistency, conciseness, and overall
quality, but it does not discuss specific responsibilities of
individual members for the QA/QC process. In addition, staff did not
consistently articulate the QA/QC responsibilities of the Project
Development Team members. The Audit Team would like to draw the
DOT&PF's attention to what appears to be an inconsistent awareness of
the use of Project Development Teams and the roles and responsibilities
of team members for QC.
Training Program
Per MOU Section 12 Training, the DOT&PF committed to implementing
training necessary to meet its environmental obligations assumed under
the NEPA Assignment Program. As required in the MOU the DOT&PF also
committed to assessing its need for training, developing a training
plan, and updating the training plan on an annual basis in consultation
with FHWA and other Federal Agencies as deemed appropriate.
The DOT&PF developed the 2018 Environmental Program Training Plan
to fulfill the requirements of Section 12 of the MOU. The 2018
Environmental Program Training Plan is a comprehensive document that
addresses a number of issues related to training including:
a variety of in-person and virtual training methods that
could be used by DOT&PF;
the timing of, and approach to, updating the 2018
Environmental Program Training Plan;
the development of an individual training plan (ITP) that
outlines both mandatory and non-mandatory training;
the training and experience the employees must acquire to
be considered for promotion; and
maintaining a record of trainings that were taken by
employees in the last 3 years and their anticipated training requests
for the upcoming year.
Successful Practices
Tracking environmental training is required by the DOT&PF's 2018
Environmental Program Training Plan. One PD&E Chief shared a
spreadsheet developed to track all the training taken by his staff,
including environmental courses. The Audit Team believes this tool will
help ensure employees received required training to advance the NEPA
Assignment Program.
Observations:
Observation #7: Training Program
MOU Sections 12.2, 4.2.2 and 4.2.3 require the DOT&PF to retain
staff and the organizational capacity to implement their program and to
implement training. Training often is an important tool for attaining
and maintaining staff and organizational capacity. The Audit Team asked
DOT&PF staff to share their perceptions about the training requirements
in the plan; the adequacy of the training budget; and how training
relates to their job responsibilities, performance, and employee
development and promotion. The Audit Team urges the DOT&PF to consider
ways to accommodate training needs and consider various approaches to
deliver necessary training in a timely manner:
a) Regarding training requirements, some interviewees said that the
DOT&PF's training plan requirements were unrealistic because either: 1)
staff was too busy working on projects to have the time to complete the
training courses identified in the plan; or 2) given the turnover rates
in their office and the frequency of training offered, employees were
unlikely to get all required training during their tenure. The Audit
Team considers the plan to be realistic and urges the DOT&PF to
consider ways to address these challenges.
b) Regarding the training budget, interview responses revealed no
consensus. The DOT&PF management indicated a strong desire to have a
robust NEPA program and some interviewees responded that they felt that
the training budget was adequate. However, responses from other
interviewees indicated that the training budget was inadequate,
especially as it relates to travel. The Audit Team was unable to
resolve whether the budget was inadequate and will consider this issue
again in the next audit.
c) The 2018 Environmental Program Training Plan links training to
employee
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development and promotion. Interviews revealed: (1) inconsistent
preparation and use of an ITP as is required for employees; (2)
perceptions that training requirements for flexing from an Analyst 1 to
Analyst 2 position are clearly spelled out, but not for advancement
beyond an Analyst 2 position; (3) concerns that training opportunities
are too limited or not available; and (4) some employees have not had a
performance review in several years. Based on this input, the Audit
Team suggests that the DOT&PF focus on additional ways to improve
implementation of their Training Plan.
d) Regarding training needs, DOT&PF staff indicated a need for
Section 4(f) training, according to interviews in all three regions and
SEO. Multiple interviewees also identified a need for training in noise
and floodplains. Training needs cited at a lesser frequency included
ESA, cumulative effects, Section 408, EA/EIS, QA/QC, Planning and
Environmental Linkages, stream enhancement, NEPA, conflict resolution
and mediation. Given that the DOT&PF is now implementing additional
environmental review responsibilities based on the MOU, and staff
recognize the need to be prepared to embrace those responsibilities,
the Audit Team urges the DOT&PF to address these training needs
expeditiously, and be sensitive to ongoing training needs.
Performance Measures
The DOT&PF has demonstrated it has taken an active interest in
developing, monitoring, and implementing the performance measures
required by the MOU. The March 21, 2018, DOT&PF NEPA Assignment Self-
Assessment Summary Report contained the results of the DOT&PF's first
report of its assessment of NEPA Assignment and DOT&PF procedures
compliance. The DOT&PF's March 1, 2017, response to FHWA's PAIR
included answers to questions posed on performance measures. Because of
the information provided in these two documents, combined with the fact
that a relatively brief period of time has transpired since the MOU
became effective, the Audit Team has not identified any observations or
successful practices here. However, the following discussion describes
the current status of the DOT&PF's performance measures.
The DOT&PF's performance measure to assess change in communication
among the DOT&PF, Federal and State resource agencies, and the public
resulting from assumption of responsibilities under this MOU was based
on the experience of a single EA project, according to DOT&PF's self-
assessment summary report. Through interviews, the Audit Team learned
that the DOT&PF believes the resource agencies will observe little
change in communication and consultation because DOT&PF had been
operating under a 23 U.S.C. 326 MOU since September 2009.
The DOT&PF's self-assessment summary report suggests some early
efficiencies have been observed, but the consensus from interviews was
that it is too early to determine if substantial increased efficiencies
and timeliness will result from the program. Some individuals indicated
that over time the program should result in increased efficiencies and
timeliness.
Through interviews, the Audit Team learned that data for
performance measures are being collected and presented quarterly to
DOT&PF management for use in decisionmaking. Also, that DOT&PF believes
the existing performance measures are comprehensive and adequate. The
DOT&PF leadership said that performances measures will be evaluated
annually to determine if adjustment is needed.
Legal Sufficiency
Interviews with both staff and management attorneys emphasized the
legal sufficiency review process emulated FHWA's ``early legal
involvement'' concept, i.e., bringing a lawyer onto the reviewing team
at an early stage in project development. We learned that DOT&PF staff
do not need to go through management to talk to an attorney, but may
call or email at any time (and, with regard to EAs, have done so under
NEPA Assignment). Management noted specific review steps are to take
place at the both draft and final stages for assigned EISs and
Individual Section 4(f) Evaluations.
At this time, the Alaska Department of Law (DOL) expressed no
intention of expanding the number of staff attorneys assigned to
document review; however, it has a contingency plan should workload
increase significantly in future. Specifically, should DOT&PF be sued
over an assigned project, DOL tentatively intends to contract with
outside counsel (per 23 U.S.C. 327[a][2][G]) to handle the litigation
rather than make a single staff attorney divide his time between
document review and defending the case. The Transportation Section
attorney would act as support counsel to the litigators in a manner
similar to the way FHWA counsel provide litigation support to the U.S.
Department of Justice when it defends FHWA's environmental decisions in
court. (MOU Section 6.1.1)
Next Steps
The FHWA provided this draft audit report to DOT&PF for a 14-day
review and comment period. The Audit Team considered DOT&PF comments in
developing this draft audit report. The FHWA will publish a notice in
the Federal Register for a 30-day comment period in accordance with 23
U.S.C. 327(g). No later than 60 days after the close of the comment
period, FHWA will respond to all comments submitted to finalize this
draft audit report pursuant to 23 U.S.C. 327(g)(B). The FHWA will
publish the final audit report in the Federal Register.
[FR Doc. 2018-19184 Filed 9-4-18; 8:45 am]
BILLING CODE 4910-22-P
