Surface Transportation Project Delivery Program; Utah Department of Transportation Audit Report, 15663-15666 [2019-07561]

Download as PDF khammond on DSKBBV9HB2PROD with NOTICES Federal Register / Vol. 84, No. 73 / Tuesday, April 16, 2019 / Notices visibility; (iii) the availability, effectiveness, and usability of online customer service tools that manage car orders, car supply, and demurrage and accessorial charges, including whether these tools make available adequate data to evaluate whether demurrage is being assessed properly and to dispute the charges when necessary; (iv) bunching, including bunching that occurs upstream; and (v) the ability to address demurrage through commercial arrangements. • Impacts on shippers, receivers, third-party logistics providers, and shortline railroads flowing from recent (i) changes in Class I carrier demurrage and accessorial tariffs; (ii) changes in Class I carriers’ enforcement policies for these tariffs; and (iii) operational changes implemented by Class I carriers including, in particular, changes in the frequency and timing of local service and/or shortline interchanges. • Perspectives on whether demurrage and accessorial tariffs in effect during the past three years have created balanced and appropriate incentives for both customers and railroads, including views on the extent to which reciprocity should be incorporated into demurrage and accessorial charges. Board Releases and Transcript Availability: Decisions and notices of the Board, including this notice, are available on the Board’s website at www.stb.gov. The Board will issue a separate notice containing instructions for attendance at the hearing and the schedule of appearances. Please note that streaming and recording systems will not be available to the Board for this hearing. As soon as a transcript is available, it will be posted on the Board’s website. It is ordered: 1. A public hearing will be held on May 22, 2019, at 9:30 a.m., in the Main Hearing Room (Room 101) of the U.S. International Trade Commission, located at 500 E Street SW, Washington, DC, near the Board’s headquarters. 2. By April 24, 2019, any person wishing to speak at the hearing shall file with the Board a notice of intent to participate identifying the party, the proposed speaker, and the time requested. 3. The Class I carriers are directed to file information by May 1, 2019, and to appear at the hearing through knowledgeable company officials, as specified above. 4. Written testimony by hearing participants, and written submissions by interested persons who will not appear at the hearing, shall be filed by May 8, 2019. VerDate Sep<11>2014 16:32 Apr 15, 2019 Jkt 247001 5. Filings will be posted to the Board’s website and need not be served on any hearing participants or other commenters. 6. This decision is effective on its service date. Decided: April 8, 2019. By the Board, Allison C. Davis, Acting Director, Office of Proceedings. Jeffrey Herzig, Clearance Clerk. [FR Doc. 2019–07522 Filed 4–15–19; 8:45 am] BILLING CODE 4915–01–P DEPARTMENT OF TRANSPORTATION Federal Highway Administration [FHWA Docket No. FHWA–2019–0009] Surface Transportation Project Delivery Program; Utah 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 carrying out the responsibilities it has assumed, in lieu of FHWA. This program mandates annual audits during each of the first 4 years of State participation to ensure compliance with program requirements. This notice announces and solicits comments on the second audit report for the Utah Department of Transportation (UDOT). DATES: Comments must be received on or before May 16, 2019. 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 SUMMARY: PO 00000 Frm 00084 Fmt 4703 Sfmt 4703 15663 desiring notification of receipt of 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: Ms. Deirdre Remley, Office of Project Development and Environmental Review, (202) 366–0524, Deirdre.Remley@dot.gov, or Mr. David Sett, Office of the Chief Counsel, (404) 562–3676, David.Sett@dot.gov, Federal Highway Administration, U.S. Department of Transportation, 60 Forsyth Street 8M5, Atlanta, GA 30303. 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 it has assumed, in lieu of FHWA. The UDOT published its application for NEPA assumption on October 9, 2015, and made it available for public comment for 30 days. After considering public comments, UDOT submitted its application to FHWA on December 1, 2015. The application served as the basis for developing a memorandum of understanding (MOU) that identified the responsibilities and obligations that UDOT would assume. The FHWA published a notice of the draft MOU in the Federal Register on November 16, 2016, with a 30-day comment period to solicit the views of the public and Federal agencies. After the close of the comment period, FHWA and UDOT considered comments and E:\FR\FM\16APN1.SGM 16APN1 15664 Federal Register / Vol. 84, No. 73 / Tuesday, April 16, 2019 / Notices proceeded to execute the MOU. Effective January 17, 2017, UDOT 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 to ensure compliance with the MOU during each of the first 4 years of State participation and, after the fourth year, monitor compliance. The FHWA must make the results of each audit available for public comment. The first audit report of UDOT compliance was finalized on September 17, 2018. This notice announces the availability of the second audit report for UDOT and solicits public comment on the 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: April 8, 2019. Brandye L. Hendrickson, Deputy Administrator, Federal Highway Administration. Surface Transportation Project Delivery Program Draft FHWA Audit of the Utah Department of Transportation khammond on DSKBBV9HB2PROD with NOTICES June 10, 2017–June 30, 2018 Executive Summary This report summarizes the results of the Federal Highway Administration’s (FHWA) second audit of the Utah Department of Transportation’s (UDOT) National Environmental Policy Act (NEPA) review responsibilities and obligations that FHWA has assigned and UDOT 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, UDOT and FHWA executed a memorandum of understanding (MOU) on January 17, 2017, to memorialize UDOT’s NEPA responsibilities and liabilities for Federal-aid highway projects and certain other FHWA approvals for transportation projects in Utah. The FHWA’s only NEPA responsibilities in Utah are oversight and review of how UDOT executes its NEPA Assignment Program obligations. The section 327 MOU covers environmental review responsibilities for projects that require the preparation of environmental assessments (EA), environmental impact statements (EIS), and non-designated documented categorical exclusions (DCE). A separate MOU, pursuant to 23 U.S.C. 326, authorizes UDOT’s environmental review responsibilities VerDate Sep<11>2014 16:32 Apr 15, 2019 Jkt 247001 for other categorical exclusions (CE), commonly known as CE Program Assignment. This audit does not cover the CE Program Assignment responsibilities and projects. As part of its review responsibilities under 23 U.S.C. 327, FHWA formed a team (the ‘‘Audit Team’’) in July 2018 to plan and conduct an audit of NEPA responsibilities UDOT assumed. Prior to the on-site visit, the Audit Team reviewed UDOT’s NEPA project files, UDOT’s response to FHWA’s pre-audit information request (PAIR), UDOT’s self-assessment of its NEPA Program, UDOT’s NEPA Quality Assurance/ Quality Control (QA/QC) Guidance, its NEPA Assignment Training Plan, and its NEPA Assignment Self-Assessment Report. The Audit Team conducted an on-site review during the week of October 15 to October 18, 2018. The Audit Team conducted interviews with seven members of UDOT central office staff, three staff members of UDOT’s legal counsel, and two staff members from the Utah State Historic Preservation Office as part of this on-site review. Overall, the Audit Team found that UDOT is successfully adding DCE, EA, and EIS project review responsibilities to an already successful CE review program. The UDOT has made efforts to respond to FHWA findings of the first audit, including improving document management, internal communication, and use of terms related to Section 4(f). In the first audit, FHWA Audit Team made the observation that there was inconsistent understanding of QA/QC procedures among UDOT staff. In the second audit, FHWA Audit Team identified an observation related to four instances of UDOT’s lack of adherence to its QA/QC procedures. In addition, although UDOT has improved its document management, the second audit found that UDOT continues to lack procedures for retaining draft and deliberative materials for project records. The Audit Team identified two observations as well as several successful practices. The Audit Team finds UDOT is carrying out the responsibilities it has assumed and is in substantial 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 and certain FHWA approvals. Under 23 U.S.C. 327, a State that assumes these Federal responsibilities becomes solely PO 00000 Frm 00085 Fmt 4703 Sfmt 4703 responsible and solely liable for carrying them out. Effective January 17, 2017, UDOT assumed FHWA’s responsibilities under NEPA and other related environmental laws. Examples of responsibilities UDOT has assumed in addition to NEPA include section 7 consultation under the Endangered Species Act and consultation under section 106 of the National Historic Preservation Act. Following this second audit, FHWA will conduct two more annual audits to satisfy provisions of 23 U.S.C. 327(g) and Part 11 of the MOU. Audits are the primary mechanism through which FHWA may oversee UDOT’s compliance with the MOU and the NEPA Assignment Program requirements. This includes ensuring compliance with applicable Federal laws and policies, evaluating UDOT’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 Utah Division, as well as additional FHWA Division staff from California, the District of Columbia, Georgia, and Alaska. These experts received training on how to evaluate implementation of the NEPA Assignment Program. Scope and Methodology The Audit Team conducted an examination of UDOT’s NEPA project files, UDOT responses to the PAIR, and UDOT self-assessment. The audit also included interviews with staff and reviews of UDOT 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; QA/QC; legal sufficiency; training; and performance measurement. The focus of the audit was on UDOT’s process and program implementation. Therefore, while the Audit Team reviewed project files to evaluate UDOT’s NEPA process and procedures, the Audit Team did not evaluate UDOT’s project-specific decisions to determine if they were, in FHWA’s opinion, correct or not. The Audit Team reviewed 23 NEPA Project files with DCEs, EAs, and EISs, representing all projects with decision points or other actionable items between June 10, 2017, and June 30, 2018. The Audit Team also E:\FR\FM\16APN1.SGM 16APN1 Federal Register / Vol. 84, No. 73 / Tuesday, April 16, 2019 / Notices khammond on DSKBBV9HB2PROD with NOTICES interviewed environmental staff in UDOT’s headquarters office. The PAIR consisted of 29 questions about specific elements in the MOU. The Audit Team used UDOT’s response to the PAIR to develop specific followup questions for the on-site interviews with UDOT staff. The Audit Team conducted seven inperson interviews with UDOT environmental staff, one in-person interview with two staff members of the UDOT State Historic Preservation Office, two phone interviews with UDOT’s outside legal counsel, and one interview with legal counsel from the Utah Attorney General’s office. The Audit Team invited UDOT staff, middle management, and executive management to participate 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 UDOT NEPA Assignment Program including UDOT policies, guidance, manuals, and reports. This included the NEPA QA/QC Guidance, the NEPA Assignment Training Plan, and the NEPA Assignment Self-Assessment Report. The Audit Team compared the procedures outlined in UDOT environmental manuals and policies to the information obtained during interviews and project file reviews to determine if there were discrepancies between UDOT’s performance and documented procedures. The Audit Team documented observations under the six NEPA Assignment Program topic areas. Below are the audit results. Overall, UDOT 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 UDOT is substantially compliant with the provisions of the MOU. Observations and Successful Practices This section summarizes the Audit Team’s observations of UDOT’s NEPA Assignment Program implementation, including successful practices UDOT may want to continue or expand. Successful practices are positive results FHWA would like to commend UDOT for developing. These may include ideas or concepts that UDOT has planned but not yet implemented. Observations are items the Audit Team would like to draw UDOT’s attention to that may benefit from revisions to improve processes, procedures, or outcomes. The UDOT may have already taken steps to address or improve upon the Audit Team’s observations, but, at the time of VerDate Sep<11>2014 16:32 Apr 15, 2019 Jkt 247001 the audit, they appeared to be areas where UDOT 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 UDOT to implement 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 #3. The third audit report will include a summary discussion that describes progress since the last audit. Program Management Successful Practices The UDOT and FHWA Division office meet on a quarterly basis to keep staff updated on current topics related to UDOT’s implementation of the NEPA Assignment Program. During FHWA/ UDOT quarterly meetings, the agencies work to ensure project delivery schedules of non-assigned Federal actions, such as Federal land transfers and Interstate access change requests as they relate to projects assigned to UDOT under the MOU. This meeting is also used to address program-level NEPA Assignment questions, such as clarifying starting dates of EAs for performance tracking. Documentation and Records Management Successful Practices ProjectWise is a document database UDOT uses to maintain final project records for DCEs, EAs, and EISs. Though it was not developed specifically for producing and maintaining environmental documents, ProjectWise is accessible to all staff and can store final environmental documents and technical reports. Since the last audit, UDOT has started using organizational tools, such as subfolders in ProjectWise, to better organize final environmental documents. Once the environmental review process is complete for a project and the consultant has submitted final project files, UDOT uses project record checklists to confirm completeness of ProjectWise files. Observation #1: Incomplete Retention of Environmental Project Records The project reviews and interviews determined UDOT retains final environmental documents such as EAs, Draft EISs, Final EISs, Findings of No Significant Impact, and Records of Decision, and certain technical reports PO 00000 Frm 00086 Fmt 4703 Sfmt 4703 15665 in ProjectWise. There is, however, no procedure for retaining other types of supporting materials that inform NEPA decisions and other environmental determinations. Other records, such as meeting summaries documenting coordination with resource agencies and stakeholders or telephone memos documenting conversations used to gather substantive information related to environmental decisions, were generally absent from the ProjectWise files reviewed. Some environmental staff said they store these types of documents on personal drives, local servers, or as hardcopy in filing cabinets. This dispersal and inconsistency of recordkeeping could result in document loss and difficulty of retrieval, hampering the ability to demonstrate support for Agency decisions, including compilation of administrative records in legal challenges. Quality Assurance/Quality Control Observation #2: Inconsistent Application of UDOT’s QA/QC Procedures Section 8.2.4 of the MOU requires UDOT to develop a QA/QC process. Project file reviews revealed that one of the two Draft EISs that UDOT approved for circulation during the audit period occurred prior to completion of the required QA/QC process. This approval was not in accordance with either the QA/QC Plan or the UDOT Manual of Instruction, which require the Environmental Document QC Form, signed by the Environmental Program Manager and the Director of Environment, be provided to the UDOT Signatory Official with the request for approval of the Draft EIS. Project file reviews and interviews with UDOT staff revealed an inconsistent approach to conducting and documenting the QA/QC process for DCEs. The Audit Team reviewed project files for four DCEs. This review revealed three different approaches to conducting the required QA/QC for these projects. Two of these QA/QC reviews used one form, the third used a different form, and the fourth project had neither a form nor other documentation in ProjectWise. These inconsistencies in practice suggest that UDOT’s QA/QC procedures may not be effective. The UDOT may also be unnecessarily increasing its risks when staff do not follow stipulated quality control reviews prior to making NEPA decisions. E:\FR\FM\16APN1.SGM 16APN1 15666 Federal Register / Vol. 84, No. 73 / Tuesday, April 16, 2019 / Notices Legal Sufficiency Successful Practices During the audit period, outside counsel issued two findings of legal sufficiency per the requirements of 23 CFR 771.125(b) and 23 CFR 774.7(d), copies of which were provided to the Audit Team. Through interviews, the Audit Team learned UDOT has continued using the legal sufficiency process it put in place for both Section 326 CE and section 327 NEPA Assignment, which is contracting with outside counsel who have extensive experience in NEPA, other environmental laws, and Federal environmental litigation. The UDOT Environmental Managers work directly with outside counsel without the need to go through the Utah Attorney General’s (AG) Office. Nevertheless, an Assistant AG assigned to UDOT is kept apprised of all communications between UDOT staff and outside counsel and reviews all bills submitted by outside counsel. Outside counsel have been included as part of the ‘‘project team’’ from the start of projects, and some have reviewed draft notices of intent for EISs. In addition, the UDOT, an Assistant AG, and outside counsel hold quarterly meetings at which UDOT staff apprise counsel of upcoming project reviews and anticipated review deadlines. Training Successful Practices The UDOT has created a training plan that is customized to each employee’s needs and disciplines to provide more focused training opportunities by specialty. The UDOT provides training on general environmental topics, such as NEPA, and provides opportunities for subject matter experts to take training related to their disciplines. khammond on DSKBBV9HB2PROD with NOTICES Performance Measures Successful Practices The UDOT’s self-assessment documented the performance management details of the NEPA Assignment program in Utah, which demonstrates UDOT’s procedures under NEPA assignment have resulted in a 50 percent reduction in the time to complete DCEs, EAs, and EISs. The average time to complete environmental documents is 5 months for DCEs, 18 months for EAs, and 37 months for an EIS. Although these data are based on a limited number of completed UDOT NEPA reviews since January 2017 (nine DCEs, two EAs, and one EIS), UDOT’s initial timeliness results are promising. The UDOT will continue to monitor its progress towards improving timeliness VerDate Sep<11>2014 16:32 Apr 15, 2019 Jkt 247001 of environmental reviews as part of its performance under the NEPA Assignment Program. Next Steps The FHWA provided this draft audit report to UDOT for a 28-day review and comment period. The Audit Team considered UDOT 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)(2)(A). 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)(2)(B). Once finalized, FHWA will publish the final audit report in the Federal Register. [FR Doc. 2019–07561 Filed 4–15–19; 8:45 am] BILLING CODE 4910–RY–P DEPARTMENT OF TRANSPORTATION Maritime Administration [Docket No. MARAD–2019–0051] Requested Administrative Waiver of the Coastwise Trade Laws: Vessel DAY CHARTER SA; Invitation for Public Comments Maritime Administration, DOT. Notice. AGENCY: ACTION: The Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.build requirements of the coastwise trade laws to allow the carriage of no more than twelve passengers for hire on vessels, which are three years old or more. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below. DATES: Submit comments on or before May 16, 2019. ADDRESSES: You may submit comments identified by DOT Docket Number MARAD–2019–0051 by any one of the following methods: • Federal eRulemaking Portal: Go to https://www.regulations.gov. Search MARAD–2019–0051 and follow the instructions for submitting comments. • Mail or Hand Delivery: Docket Management Facility is in the West Building, Ground Floor of the U.S. Department of Transportation. The Docket Management Facility location address is: U.S. Department of Transportation, MARAD–2019–0051, 1200 New Jersey Avenue SE, West Building, Room W12–140, Washington, DC 20590, between 9 a.m. and 5 p.m., SUMMARY: PO 00000 Frm 00087 Fmt 4703 Sfmt 4703 Monday through Friday, except on Federal holidays. Note: If you mail or hand-deliver your comments, we recommend that you include your name and a mailing address, an email address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission. Instructions: All submissions received must include the agency name and specific docket number. All comments received will be posted without change to the docket at www.regulations.gov, including any personal information provided. For detailed instructions on submitting comments, see the section entitled Public Participation. FOR FURTHER INFORMATION CONTACT: Bianca Carr, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE, Room W23–453, Washington, DC 20590. Telephone 202– 366–9309, Email Bianca.carr@dot.gov. SUPPLEMENTARY INFORMATION: As described by the applicant the intended service of the vessel DAY CHARTER SA is: —Intended Commercial Use of Vessel: ‘‘Day Charters off the South Shore of Oahu. Private day sailing, snorkeling, whale watching, weddings and funerals, sunset cruises.’’ —Geographic Region Including Base of Operations: ‘‘Hawaii’’ (Base of Operations: Honolulu, HI) —Vessel Length and Type: 39′ catamaran The complete application is available for review identified in the DOT docket as MARAD–2019–0051 at https:// www.regulations.gov. Interested parties may comment on the effect this action may have on U.S. vessel builders or businesses in the U.S. that use U.S.-flag vessels. If MARAD determines, in accordance with 46 U.S.C. 12121 and MARAD’s regulations at 46 CFR part 388, that the issuance of the waiver will have an unduly adverse effect on a U.S.vessel builder or a business that uses U.S.-flag vessels in that business, a waiver will not be granted. Comments should refer to the vessel name, state the commenter’s interest in the waiver application, and address the waiver criteria given in section 388.4 of MARAD’s regulations at 46 CFR part 388. Public Participation How do I submit comments? Please submit your comments, including the attachments, following the instructions provided under the above heading entitled ADDRESSES. Be advised E:\FR\FM\16APN1.SGM 16APN1

Agencies

[Federal Register Volume 84, Number 73 (Tuesday, April 16, 2019)]
[Notices]
[Pages 15663-15666]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-07561]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

[FHWA Docket No. FHWA-2019-0009]


Surface Transportation Project Delivery Program; Utah 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 carrying out the responsibilities it has 
assumed, in lieu of FHWA. This program mandates annual audits during 
each of the first 4 years of State participation to ensure compliance 
with program requirements. This notice announces and solicits comments 
on the second audit report for the Utah Department of Transportation 
(UDOT).

DATES: Comments must be received on or before May 16, 2019.

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 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: Ms. Deirdre Remley, Office of Project 
Development and Environmental Review, (202) 366-0524, 
[email protected], or Mr. David Sett, Office of the Chief Counsel, 
(404) 562-3676, [email protected], Federal Highway Administration, 
U.S. Department of Transportation, 60 Forsyth Street 8M5, Atlanta, GA 
30303. 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 it has assumed, in lieu of FHWA. 
The UDOT published its application for NEPA assumption on October 9, 
2015, and made it available for public comment for 30 days. After 
considering public comments, UDOT submitted its application to FHWA on 
December 1, 2015. The application served as the basis for developing a 
memorandum of understanding (MOU) that identified the responsibilities 
and obligations that UDOT would assume. The FHWA published a notice of 
the draft MOU in the Federal Register on November 16, 2016, with a 30-
day comment period to solicit the views of the public and Federal 
agencies. After the close of the comment period, FHWA and UDOT 
considered comments and

[[Page 15664]]

proceeded to execute the MOU. Effective January 17, 2017, UDOT 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 to ensure compliance with the MOU during each of 
the first 4 years of State participation and, after the fourth year, 
monitor compliance. The FHWA must make the results of each audit 
available for public comment. The first audit report of UDOT compliance 
was finalized on September 17, 2018. This notice announces the 
availability of the second audit report for UDOT and solicits public 
comment on the 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: April 8, 2019.
Brandye L. Hendrickson,
Deputy Administrator, Federal Highway Administration.

Surface Transportation Project Delivery Program

Draft FHWA Audit of the Utah Department of Transportation

June 10, 2017-June 30, 2018

Executive Summary

    This report summarizes the results of the Federal Highway 
Administration's (FHWA) second audit of the Utah Department of 
Transportation's (UDOT) National Environmental Policy Act (NEPA) review 
responsibilities and obligations that FHWA has assigned and UDOT 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, UDOT and FHWA executed a memorandum of understanding (MOU) on 
January 17, 2017, to memorialize UDOT's NEPA responsibilities and 
liabilities for Federal-aid highway projects and certain other FHWA 
approvals for transportation projects in Utah. The FHWA's only NEPA 
responsibilities in Utah are oversight and review of how UDOT executes 
its NEPA Assignment Program obligations. The section 327 MOU covers 
environmental review responsibilities for projects that require the 
preparation of environmental assessments (EA), environmental impact 
statements (EIS), and non-designated documented categorical exclusions 
(DCE). A separate MOU, pursuant to 23 U.S.C. 326, authorizes UDOT's 
environmental review responsibilities for other categorical exclusions 
(CE), commonly known as CE Program Assignment. This audit does not 
cover the CE Program Assignment responsibilities and projects.
    As part of its review responsibilities under 23 U.S.C. 327, FHWA 
formed a team (the ``Audit Team'') in July 2018 to plan and conduct an 
audit of NEPA responsibilities UDOT assumed. Prior to the on-site 
visit, the Audit Team reviewed UDOT's NEPA project files, UDOT's 
response to FHWA's pre-audit information request (PAIR), UDOT's self-
assessment of its NEPA Program, UDOT's NEPA Quality Assurance/Quality 
Control (QA/QC) Guidance, its NEPA Assignment Training Plan, and its 
NEPA Assignment Self-Assessment Report. The Audit Team conducted an on-
site review during the week of October 15 to October 18, 2018. The 
Audit Team conducted interviews with seven members of UDOT central 
office staff, three staff members of UDOT's legal counsel, and two 
staff members from the Utah State Historic Preservation Office as part 
of this on-site review.
    Overall, the Audit Team found that UDOT is successfully adding DCE, 
EA, and EIS project review responsibilities to an already successful CE 
review program. The UDOT has made efforts to respond to FHWA findings 
of the first audit, including improving document management, internal 
communication, and use of terms related to Section 4(f). In the first 
audit, FHWA Audit Team made the observation that there was inconsistent 
understanding of QA/QC procedures among UDOT staff. In the second 
audit, FHWA Audit Team identified an observation related to four 
instances of UDOT's lack of adherence to its QA/QC procedures. In 
addition, although UDOT has improved its document management, the 
second audit found that UDOT continues to lack procedures for retaining 
draft and deliberative materials for project records.
    The Audit Team identified two observations as well as several 
successful practices. The Audit Team finds UDOT is carrying out the 
responsibilities it has assumed and is in substantial 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 and certain FHWA approvals. Under 23 
U.S.C. 327, a State that assumes these Federal responsibilities becomes 
solely responsible and solely liable for carrying them out. Effective 
January 17, 2017, UDOT assumed FHWA's responsibilities under NEPA and 
other related environmental laws. Examples of responsibilities UDOT has 
assumed in addition to NEPA include section 7 consultation under the 
Endangered Species Act and consultation under section 106 of the 
National Historic Preservation Act.
    Following this second audit, FHWA will conduct two more annual 
audits to satisfy provisions of 23 U.S.C. 327(g) and Part 11 of the 
MOU. Audits are the primary mechanism through which FHWA may oversee 
UDOT's compliance with the MOU and the NEPA Assignment Program 
requirements. This includes ensuring compliance with applicable Federal 
laws and policies, evaluating UDOT'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 
Utah Division, as well as additional FHWA Division staff from 
California, the District of Columbia, Georgia, and Alaska. These 
experts received training on how to evaluate implementation of the NEPA 
Assignment Program.

Scope and Methodology

    The Audit Team conducted an examination of UDOT's NEPA project 
files, UDOT responses to the PAIR, and UDOT self-assessment. The audit 
also included interviews with staff and reviews of UDOT 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; QA/
QC; legal sufficiency; training; and performance measurement.
    The focus of the audit was on UDOT's process and program 
implementation. Therefore, while the Audit Team reviewed project files 
to evaluate UDOT's NEPA process and procedures, the Audit Team did not 
evaluate UDOT's project-specific decisions to determine if they were, 
in FHWA's opinion, correct or not. The Audit Team reviewed 23 NEPA 
Project files with DCEs, EAs, and EISs, representing all projects with 
decision points or other actionable items between June 10, 2017, and 
June 30, 2018. The Audit Team also

[[Page 15665]]

interviewed environmental staff in UDOT's headquarters office.
    The PAIR consisted of 29 questions about specific elements in the 
MOU. The Audit Team used UDOT's response to the PAIR to develop 
specific follow-up questions for the on-site interviews with UDOT 
staff.
    The Audit Team conducted seven in-person interviews with UDOT 
environmental staff, one in-person interview with two staff members of 
the UDOT State Historic Preservation Office, two phone interviews with 
UDOT's outside legal counsel, and one interview with legal counsel from 
the Utah Attorney General's office. The Audit Team invited UDOT staff, 
middle management, and executive management to participate 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 UDOT NEPA Assignment Program including UDOT 
policies, guidance, manuals, and reports. This included the NEPA QA/QC 
Guidance, the NEPA Assignment Training Plan, and the NEPA Assignment 
Self-Assessment Report.
    The Audit Team compared the procedures outlined in UDOT 
environmental manuals and policies to the information obtained during 
interviews and project file reviews to determine if there were 
discrepancies between UDOT's performance and documented procedures. The 
Audit Team documented observations under the six NEPA Assignment 
Program topic areas. Below are the audit results.
    Overall, UDOT 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 UDOT is substantially 
compliant with the provisions of the MOU.

Observations and Successful Practices

    This section summarizes the Audit Team's observations of UDOT's 
NEPA Assignment Program implementation, including successful practices 
UDOT may want to continue or expand. Successful practices are positive 
results FHWA would like to commend UDOT for developing. These may 
include ideas or concepts that UDOT has planned but not yet 
implemented. Observations are items the Audit Team would like to draw 
UDOT's attention to that may benefit from revisions to improve 
processes, procedures, or outcomes. The UDOT 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 UDOT 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 UDOT to implement 
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 #3. The third audit report will include a 
summary discussion that describes progress since the last audit.

Program Management

Successful Practices

    The UDOT and FHWA Division office meet on a quarterly basis to keep 
staff updated on current topics related to UDOT's implementation of the 
NEPA Assignment Program. During FHWA/UDOT quarterly meetings, the 
agencies work to ensure project delivery schedules of non-assigned 
Federal actions, such as Federal land transfers and Interstate access 
change requests as they relate to projects assigned to UDOT under the 
MOU. This meeting is also used to address program-level NEPA Assignment 
questions, such as clarifying starting dates of EAs for performance 
tracking.

Documentation and Records Management

Successful Practices

    ProjectWise is a document database UDOT uses to maintain final 
project records for DCEs, EAs, and EISs. Though it was not developed 
specifically for producing and maintaining environmental documents, 
ProjectWise is accessible to all staff and can store final 
environmental documents and technical reports. Since the last audit, 
UDOT has started using organizational tools, such as subfolders in 
ProjectWise, to better organize final environmental documents. Once the 
environmental review process is complete for a project and the 
consultant has submitted final project files, UDOT uses project record 
checklists to confirm completeness of ProjectWise files.

Observation #1: Incomplete Retention of Environmental Project Records

    The project reviews and interviews determined UDOT retains final 
environmental documents such as EAs, Draft EISs, Final EISs, Findings 
of No Significant Impact, and Records of Decision, and certain 
technical reports in ProjectWise. There is, however, no procedure for 
retaining other types of supporting materials that inform NEPA 
decisions and other environmental determinations. Other records, such 
as meeting summaries documenting coordination with resource agencies 
and stakeholders or telephone memos documenting conversations used to 
gather substantive information related to environmental decisions, were 
generally absent from the ProjectWise files reviewed. Some 
environmental staff said they store these types of documents on 
personal drives, local servers, or as hardcopy in filing cabinets. This 
dispersal and inconsistency of recordkeeping could result in document 
loss and difficulty of retrieval, hampering the ability to demonstrate 
support for Agency decisions, including compilation of administrative 
records in legal challenges.

Quality Assurance/Quality Control

Observation #2: Inconsistent Application of UDOT's QA/QC Procedures

    Section 8.2.4 of the MOU requires UDOT to develop a QA/QC process. 
Project file reviews revealed that one of the two Draft EISs that UDOT 
approved for circulation during the audit period occurred prior to 
completion of the required QA/QC process. This approval was not in 
accordance with either the QA/QC Plan or the UDOT Manual of 
Instruction, which require the Environmental Document QC Form, signed 
by the Environmental Program Manager and the Director of Environment, 
be provided to the UDOT Signatory Official with the request for 
approval of the Draft EIS.
    Project file reviews and interviews with UDOT staff revealed an 
inconsistent approach to conducting and documenting the QA/QC process 
for DCEs. The Audit Team reviewed project files for four DCEs. This 
review revealed three different approaches to conducting the required 
QA/QC for these projects. Two of these QA/QC reviews used one form, the 
third used a different form, and the fourth project had neither a form 
nor other documentation in ProjectWise. These inconsistencies in 
practice suggest that UDOT's QA/QC procedures may not be effective. The 
UDOT may also be unnecessarily increasing its risks when staff do not 
follow stipulated quality control reviews prior to making NEPA 
decisions.

[[Page 15666]]

Legal Sufficiency

Successful Practices

    During the audit period, outside counsel issued two findings of 
legal sufficiency per the requirements of 23 CFR 771.125(b) and 23 CFR 
774.7(d), copies of which were provided to the Audit Team. Through 
interviews, the Audit Team learned UDOT has continued using the legal 
sufficiency process it put in place for both Section 326 CE and section 
327 NEPA Assignment, which is contracting with outside counsel who have 
extensive experience in NEPA, other environmental laws, and Federal 
environmental litigation. The UDOT Environmental Managers work directly 
with outside counsel without the need to go through the Utah Attorney 
General's (AG) Office. Nevertheless, an Assistant AG assigned to UDOT 
is kept apprised of all communications between UDOT staff and outside 
counsel and reviews all bills submitted by outside counsel. Outside 
counsel have been included as part of the ``project team'' from the 
start of projects, and some have reviewed draft notices of intent for 
EISs. In addition, the UDOT, an Assistant AG, and outside counsel hold 
quarterly meetings at which UDOT staff apprise counsel of upcoming 
project reviews and anticipated review deadlines.

Training

Successful Practices

    The UDOT has created a training plan that is customized to each 
employee's needs and disciplines to provide more focused training 
opportunities by specialty. The UDOT provides training on general 
environmental topics, such as NEPA, and provides opportunities for 
subject matter experts to take training related to their disciplines.

Performance Measures

Successful Practices

    The UDOT's self-assessment documented the performance management 
details of the NEPA Assignment program in Utah, which demonstrates 
UDOT's procedures under NEPA assignment have resulted in a 50 percent 
reduction in the time to complete DCEs, EAs, and EISs. The average time 
to complete environmental documents is 5 months for DCEs, 18 months for 
EAs, and 37 months for an EIS. Although these data are based on a 
limited number of completed UDOT NEPA reviews since January 2017 (nine 
DCEs, two EAs, and one EIS), UDOT's initial timeliness results are 
promising. The UDOT will continue to monitor its progress towards 
improving timeliness of environmental reviews as part of its 
performance under the NEPA Assignment Program.

Next Steps

    The FHWA provided this draft audit report to UDOT for a 28-day 
review and comment period. The Audit Team considered UDOT 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)(2)(A). 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)(2)(B). Once 
finalized, FHWA will publish the final audit report in the Federal 
Register.

[FR Doc. 2019-07561 Filed 4-15-19; 8:45 am]
BILLING CODE 4910-RY-P

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