Surface Transportation Project Delivery Program; Alaska Department of Transportation Audit Report, 1814-1818 [2019-01061]

Download as PDF 1814 Federal Register / Vol. 84, No. 24 / Tuesday, February 5, 2019 / Notices and Delegation of Authority No. 236–3 of August 28, 2000. DEPARTMENT OF STATE Marie Therese Porter Royce, Assistant Secretary, Educational and Cultural Affairs, Department of State. [Public Notice: 10662] [FR Doc. 2019–01032 Filed 2–4–19; 8:45 am] BILLING CODE 4710–05–P Federal Highway Administration [FHWA Docket No. FHWA–2018–0040] Notice of Determinations; Culturally Significant Object Imported for Exhibition—Determinations: ‘‘Giorgione’s La Vecchia’’ Exhibition Notice is hereby given of the following determinations: I hereby determine that a certain object to be included in the exhibition ‘‘Giorgione’s La Vecchia,’’ imported from abroad for temporary exhibition within the United States, is of cultural significance. The object is imported pursuant to a loan agreement with the foreign owner or custodian. I also determine that the exhibition or display of the exhibit object at the Cincinnati Art Museum, Cincinnati, Ohio, from on or about February 15, 2019, until on or about May 5, 2019, at the Wadsworth Atheneum Museum of Art, Hartford, Connecticut, from on or about May 15, 2019, until on or about August 4, 2019, and at possible additional exhibitions or venues yet to be determined, is in the national interest. I have ordered that Public Notice of these determinations be published in the Federal Register. SUMMARY: DEPARTMENT OF STATE [Public Notice: 10664] Notice of Determinations; Culturally Significant Objects Imported for Exhibition—Determinations: ‘‘Treasures from the Zhiguan Museum’’ Exhibition Notice is hereby given of the following determinations: I hereby determine that certain objects to be included in the exhibition ‘‘Treasures from the Zhiguan Museum,’’ imported from abroad for temporary exhibition within the United States, are of cultural significance. The objects are imported pursuant to loan agreements with the foreign owner or custodian. I also determine that the exhibition or display of the exhibit objects at the Rubin Museum of Art, New York, New York, from on or about March 9, 2019, until on or about March 23, 2020, and at possible additional exhibitions or venues yet to be determined, is in the national interest. I have ordered that Public Notice of these determinations be published in the Federal Register. SUMMARY: FOR FURTHER INFORMATION CONTACT: Elliot Chiu, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State (telephone: 202–632–6471; email: section2459@state.gov). The mailing address is U.S. Department of State, L/ PD, SA–5, Suite 5H03, Washington, DC 20522–0505. The foregoing determinations were made pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681, et seq.; 22 U.S.C. 6501 note, et seq.), Delegation of Authority No. 234 of October 1, 1999, and Delegation of Authority No. 236–3 of August 28, 2000. SUPPLEMENTARY INFORMATION: FOR FURTHER INFORMATION CONTACT: Elliot Chiu, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State (telephone: 202–632–6471; email: section2459@state.gov). The mailing address is U.S. Department of State, L/ PD, SA–5, Suite 5H03, Washington, DC 20522–0505. The foregoing determinations were made pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681, et seq.; 22 U.S.C. 6501 note, et seq.), Delegation of Authority No. 234 of October 1, 1999, and Delegation of Authority No. 236–3 of August 28, 2000. SUPPLEMENTARY INFORMATION: Marie Therese Porter Royce, Assistant Secretary, Educational and Cultural Affairs, Department of State. [FR Doc. 2019–01035 Filed 2–4–19; 8:45 am] BILLING CODE 4710–05–P Marie Therese Porter Royce, Assistant Secretary, Educational and Cultural Affairs, Department of State. [FR Doc. 2019–01034 Filed 2–4–19; 8:45 am] BILLING CODE 4710–05–P VerDate Sep<11>2014 17:22 Feb 04, 2019 DEPARTMENT OF TRANSPORTATION Jkt 247001 PO 00000 Frm 00117 Fmt 4703 Sfmt 4703 Surface Transportation Project Delivery Program; Alaska Department of Transportation Audit Report Federal Highway Administration (FHWA), U.S. Department of Transportation (DOT). ACTION: Notice. 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 makes available the final report of the Alaska Department of Transportation and Public Facilities (DOT&PF) first audit under the program. 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: SUMMARY: 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 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 FHWA. E:\FR\FM\05FEN1.SGM 05FEN1 Federal Register / Vol. 84, No. 24 / Tuesday, February 5, 2019 / Notices 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 of Transportation 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. The FHWA published a notice in the Federal Register at 83 FR 45181 on September 5, 2018, soliciting public comment for 30-days, pursuant to 23 U.S.C. 327(g). The FHWA received comments on the draft report from the American Road & Transportation Builders Association (ARTBA). The ARTBA’s comments were supportive of the Surface Transportation Project Delivery Program and did not relate specifically to audit 1. The team has considered these comments in finalizing this audit report. This notice makes available the final report of DOT&PF ’s first audit under the program. 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: January 7, 2019. Brandye L. Hendrickson, Deputy Administrator, Federal Highway Administration. Final 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 VerDate Sep<11>2014 17:22 Feb 04, 2019 Jkt 247001 the assumed Federal responsibilities. Following 5 months after execution of the MOU, the Audit Team identified one noncompliance 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 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 that 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 (EA), 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 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 PO 00000 Frm 00118 Fmt 4703 Sfmt 4703 1815 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 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 oversees 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 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, 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 E:\FR\FM\05FEN1.SGM 05FEN1 1816 Federal Register / Vol. 84, No. 24 / Tuesday, February 5, 2019 / Notices 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 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 noncompliance 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 VerDate Sep<11>2014 17:22 Feb 04, 2019 Jkt 247001 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. 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 selfassessment 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 PO 00000 Frm 00119 Fmt 4703 Sfmt 4703 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 E:\FR\FM\05FEN1.SGM 05FEN1 Federal Register / Vol. 84, No. 24 / Tuesday, February 5, 2019 / Notices 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 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 VerDate Sep<11>2014 17:22 Feb 04, 2019 Jkt 247001 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 offramp 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 selfassessment 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 PO 00000 Frm 00120 Fmt 4703 Sfmt 4703 1817 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 Preliminary Design and Environmental Group 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 E:\FR\FM\05FEN1.SGM 05FEN1 1818 Federal Register / Vol. 84, No. 24 / Tuesday, February 5, 2019 / Notices 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 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. VerDate Sep<11>2014 17:22 Feb 04, 2019 Jkt 247001 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 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 defends FHWA’s environmental decisions in court. (MOU Section 6.1.1) [FR Doc. 2019–01061 Filed 2–4–19; 8:45 am] BILLING CODE 4910–22–P PO 00000 Frm 00121 Fmt 4703 Sfmt 4703 DEPARTMENT OF TRANSPORTATION Federal Railroad Administration [Docket No. FRA–2019–0001] Establishment of an Emergency Relief Docket for Calendar Year 2019 Federal Railroad Administration (FRA), Department of Transportation (DOT). ACTION: Notice of establishment of public docket. AGENCY: This Notice announces the establishment of FRA’s emergency relief docket (ERD) for calendar year 2019. The designated ERD for calendar year 2019 is docket number FRA–2019–0001. ADDRESSES: See SUPPLEMENTARY INFORMATION section for further information regarding submitting petitions and/or comments to Docket No. FRA–2019–0001. SUPPLEMENTARY INFORMATION: On May 19, 2009, FRA published a direct final rule establishing ERDs and the procedures for handling petitions for emergency waivers of safety rules, regulations, or standards during an emergency situation or event. 74 FR 23329. That direct final rule became effective on July 20, 2009 and made minor modifications to 49 CFR 211.45 in FRA’s Rules of Practice in 49 CFR part 211. Section 211.45(b) provides that each calendar year FRA will establish an ERD in the publicly accessible DOT docket system (available at www.regulations.gov). Section 211.45(b) further provides that FRA will publish a notice in the Federal Register identifying by docket number the ERD for that year. FRA established the ERD and emergency waiver procedures to provide an expedited process for FRA to address the needs of the public and the railroad industry during emergency situations or events. This Notice announces the designated ERD for calendar year 2019 is docket number FRA–2019–0001. As detailed in § 211.45, if the FRA Administrator determines an emergency event as defined in 49 CFR 211.45(a) has occurred, or that an imminent threat of such an emergency occurring exists, and public safety would benefit from providing the railroad industry with operational relief, the emergency waiver procedures of 49 CFR 211.45 will go into effect. In such an event, the FRA Administrator will issue a statement in the ERD indicating the emergency waiver procedures are in effect and FRA will make every effort to post the statement on its website at www.fra.dot.gov. Any party desiring SUMMARY: E:\FR\FM\05FEN1.SGM 05FEN1

Agencies

[Federal Register Volume 84, Number 24 (Tuesday, February 5, 2019)]
[Notices]
[Pages 1814-1818]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-01061]


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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.

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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 makes available the final report of the Alaska Department of 
Transportation and Public Facilities (DOT&PF) first audit under the 
program.

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.

Background

    The Surface Transportation Project Delivery Program, codified at 23 
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 FHWA.

[[Page 1815]]

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 of 
Transportation 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. The 
FHWA published a notice in the Federal Register at 83 FR 45181 on 
September 5, 2018, soliciting public comment for 30-days, pursuant to 
23 U.S.C. 327(g). The FHWA received comments on the draft report from 
the American Road & Transportation Builders Association (ARTBA). The 
ARTBA's comments were supportive of the Surface Transportation Project 
Delivery Program and did not relate specifically to audit 1. The team 
has considered these comments in finalizing this audit report. This 
notice makes available the final report of DOT&PF 's first audit under 
the program.

    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: January 7, 2019.
Brandye L. Hendrickson,
Deputy Administrator, Federal Highway Administration.

Final 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 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 that 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 (EA), 
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 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 
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 
oversees 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 
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, 
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

[[Page 1816]]

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 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.

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

[[Page 1817]]

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 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 Preliminary Design and 
Environmental Group 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

[[Page 1818]]

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 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)

[FR Doc. 2019-01061 Filed 2-4-19; 8:45 am]
 BILLING CODE 4910-22-P