Surface Transportation Project Delivery Program; Florida DOT Audit #3 Report, 36657-36661 [2020-13005]

Download as PDF Federal Register / Vol. 85, No. 117 / Wednesday, June 17, 2020 / Notices received will be posted without change. Persons submitting comments are cautioned that we do not redact or edit personal identifying information from comment submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR–GEMX–2020–14 and should be submitted on or before July 8, 2020. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.31 J. Matthew DeLesDernier, Assistant Secretary. [FR Doc. 2020–12987 Filed 6–16–20; 8:45 am] BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION Proposed Collection for OMB Review; Comment Request Upon Written Request, Copies Available From: Securities and Exchange Commission, Office of FOIA Services, 100 F Street NE, Washington, DC 20549–2736 khammond on DSKJM1Z7X2PROD with NOTICES Extension: Rule 30b1–10, Form N–LIQUID SEC File No. 270–803, OMB Control No. 3235–0754 Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), the Securities and Exchange Commission (the ‘‘Commission’’) is soliciting comments on the collection of information summarized below. The Commission plans to submit this existing collection of information to the Office of Management and Budget for extension and approval. 17 CFR 270.30b1–10 (Rule 30b1–10) and 17 CFR 274.223 (Form N–LIQUID) require open-end investment companies, including exchange-traded funds that redeem in kind (‘‘In-Kind ETFs’’) but not including money market funds, to file a current report on Form N–LIQUID on a non-public basis when certain events related to their liquidity occur. The information reported on Form N–LIQUID concerns events under which more than 15% of a fund’s or InKind ETF’s net assets are, or become, illiquid investments that are assets as defined in 17 CFR 270.22e–4 (rule 22e– 4) and when holdings in illiquid investments are assets that previously exceeded 15% of a fund’s net assets have changed to be less than or equal to 31 17 CFR 200.30–3(a)(12). VerDate Sep<11>2014 16:44 Jun 16, 2020 Jkt 250001 15% of the fund’s net assets.1 The information reported on Form N– LIQUID also regards events under which a fund’s holdings in assets that are highly liquid investments fall below the fund’s highly liquid investment minimum for more than 7 consecutive calendar days. A report on Form N– LIQUID is required to be filed, as applicable, within one business day of the occurrence of one or more of these events.2 Based on staff analysis, we estimate that the Commission receives an average of 30 reports per year on Form N– LIQUID.3 When filing a report on Form N–LIQUID, staff estimates that a fund will spend on average approximately 4 hours of an in-house attorney’s time and 1 hour of an in-house accountant’s time to prepare, review, and submit Form N– LIQUID, at a total time cost of $1,894.4 Accordingly, in the aggregate, staff estimates that compliance with rule 30b1–10 and Form N–LIQUID will result in a total annual burden of approximately 150 burden hours and total annual time costs of approximately $56,820.5 Compliance with rule 30b1–10 is mandatory for all open-end investment companies, other than money market funds. Responses to the disclosure requirements will be kept confidential. The estimate of average burden hours is made solely for the purposes of the PRA. The estimate is not derived from a comprehensive or even a representative survey or study of the costs of Commission rules. Complying with this collection of information requirement is necessary to enable the 36657 Commission to receive information on fund liquidity events more uniformly and efficiently, and to enhance the Commission’s oversight of funds when significant liquidity events occur and its ability to respond to market events. An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid control number. Written comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency’s estimate of the burden of the collection of information; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication. Please direct your written comments to David Bottom, Director/Chief Information Officer, Securities and Exchange Commission, C/O Cynthia Roscoe, 100 F Street NE, Washington, DC 20549; or send an email to: PRA_ Mailbox@sec.gov. Dated: June 12, 2020. J. Matthew DeLesDernier, Assistant Secretary. [FR Doc. 2020–13065 Filed 6–16–20; 8:45 am] BILLING CODE 8011–01–P See Item C.1 and Item C.2 of Part A of Form N–LIQUID. 2 See General Instruction A.2 of Form N–LIQUID. 3 The estimated number of annual filings is based on the number of filings in 2019, adjusted because certain of these filings would no longer be necessary going forward and a subset of funds were not subject to the filing requirement for all of 2019. 4 This estimate is based on the following calculations: (4 hours × $419/hour for an attorney = $1,676), plus (1 hour × $218/hour for a senior accountant = $218), for a combined total of 5 hours at total time costs of $1,894. The estimates concerning the wage rates for attorney and senior accountant time are based on salary information for the securities industry compiled by the Securities Industry and Financial Markets Association. The estimated wage figure is based on published rates for in-house attorneys and senior accountants, modified to account for a 1,800-hour work-year and inflation, and multiplied by 5.35 to account for bonuses, firm size, employee benefits, and overhead. See Securities Industry and Financial Markets Association, Report on Management & Professional Earnings in the Securities Industry 2013. 5 This estimate is based on the following calculations: 30 reports filed per year × 5 hours per report = approximately 150 total annual burden hours. 30 reports filed per year × $1,894 in costs per report = $56,820 total annual costs. 1 PO 00000 Frm 00131 Fmt 4703 Sfmt 4703 DEPARTMENT OF TRANSPORTATION Federal Highway Administration [FHWA Docket No. FHWA–2019–0040] Surface Transportation Project Delivery Program; Florida DOT Audit #3 Report Federal Highway Administration (FHWA), U.S. Department of Transportation (DOT). ACTION: Notice. AGENCY: The Surface Transportation Project Delivery 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 responsible and liable for the responsibilities it has assumed, in lieu of FHWA. This program SUMMARY: E:\FR\FM\17JNN1.SGM 17JNN1 36658 Federal Register / Vol. 85, No. 117 / Wednesday, June 17, 2020 / Notices mandates annual audits during each of the first four years to ensure the State’s compliance with program requirements. This notice makes available the final report of the Florida Department of Transportation’s (FDOT) third audit under the program. Ms. Marisel Lopez Cruz, Office of Project Development and Environmental Review, (407) 867–6402, marisel.lopezcruz@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, 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. FOR FURTHER INFORMATION CONTACT: SUPPLEMENTARY INFORMATION: Electronic Access An electronic copy of this notice may be downloaded from the specific docket page at www.regulations.gov. khammond on DSKJM1Z7X2PROD with NOTICES 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 responsibilities for environmental 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. Effective December 14, 2016, FDOT assumed FHWA’s responsibilities for environmental review and the responsibilities for reviews under other Federal environmental requirements. Section 327(g) of Title 23, U.S.C., requires the Secretary to conduct annual audits to ensure compliance with the memorandum of understanding during each of the first four years of State participation and, after the fourth year, monitor compliance. The results of each audit must be made available for public comment. This notice finalizes the findings of the third audit report on FDOT participation in the program. A draft version of this report was published in the Federal Register on February 21, 2020, at 85 FR 10212, and was available for public review and comments. The FHWA received no responses to the Federal Register Notice during the public comment period for the draft report. VerDate Sep<11>2014 16:44 Jun 16, 2020 Jkt 250001 Authority: Section 1313 of Public Law 112–141; Section 6005 of Public Law 109–59; 23 U.S.C. 327; 23 CFR 773. Nicole R. Nason, Administrator, Federal Highway Administration. Final: Surface Transportation Project Delivery Program, FHWA Audit #3 of the Florida Department of Transportation, May 2018 to April 2019 Executive Summary This is the third audit of the Florida Department of Transportation’s (FDOT) assumption of the National Environmental Policy Act (NEPA) responsibilities under the Surface Transportation Project Delivery Program. Under the authority of 23 U.S.C. 327, FDOT and the Federal Highway Administration (FHWA) executed a memorandum of understanding (MOU) on December 14, 2016, whereby FHWA assigned, and FDOT assumed, FHWA’s NEPA responsibilities and liabilities for Federal-aid highway projects and other related environmental reviews for transportation projects in Florida. The FHWA formed a team in January 2019 to conduct an audit of FDOT’s performance according to the terms of the MOU. The team held internal meetings to prepare for an on-site visit to the Florida Division and FDOT offices. Prior to the on-site visit, the team reviewed FDOT’s 2019 Project Development & Environment (PD&E) Manual and NEPA project files, FDOT’s response to FHWA’s pre-audit information request (PAIR), and FDOT’s NEPA Assignment Self Assessment Summary Report. The team presented initial project file observations to FDOT Office of Environmental Management (OEM) on August 1, 2019. The team conducted interviews with FDOT and prepared preliminary audit results from September 23–26, 2019. The team presented these preliminary observations to FDOT OEM leadership on September 27, 2019. The FDOT continues to develop, revise, and implement procedures and processes required to carry out the NEPA Assignment Program. Overall, the team found that FDOT is committed to delivering a successful NEPA Program. This report describes numerous successful practices and one noncompliance observation. The FDOT has carried out the responsibilities it has assumed in keeping with the intent of the MOU and FDOT’s application. Through this report, FHWA is notifying FDOT of the one non-compliance observation that requires FDOT to take corrective action. By addressing the PO 00000 Frm 00132 Fmt 4703 Sfmt 4703 observation in this report, FDOT will continue to assure a successful program. The report concludes with the status of FHWA’s non-compliance observations from the first and second audit reviews, including any FDOT self-imposed corrective actions. Background The purpose of the audits performed under the authority of 23 U.S.C. 327 is to assess a State’s compliance with the provisions of the MOU as well as all applicable Federal statutes, regulations, policies, and guidance. The FHWA’s review and oversight obligation entails the need to collect information to evaluate the success of the NEPA Assignment Program; to evaluate a State’s progress toward achieving its performance measures as specified in the MOU; and to collect information for the administration of the NEPA Assignment Program. This report summarizes the results of the third audit in Florida and includes a summary discussion that describes progress since the last audit. Following this audit, FHWA will conduct one more annual NEPA Assignment Program audit. Scope and Methodology The overall scope of this audit review is defined both in statute (23 U.S.C. 327) and the MOU (Part 11). An audit generally is defined as an official and careful examination and verification of accounts and records, especially of financial accounts, by an independent unbiased body. With regard to accounts or financial records, audits may follow a prescribed process or methodology and be conducted by ‘‘auditors’’ who have special training in those processes or methods. The FHWA considers this review to meet the definition of an audit because it is an unbiased, independent, official, and careful examination and verification of records and information about FDOT’s assumption of environmental responsibilities. The team consisted of NEPA subject matter experts (SME) from FHWA offices in Texas, Georgia, and Headquarters, as well as staff from FHWA’s Florida Division. The diverse composition of the team, as well as the process of developing the review report and publishing it in the Federal Register, are intended to make this audit an unbiased official action taken by FHWA. The team conducted a careful examination of FDOT policies, guidance, and manuals pertaining to NEPA responsibilities, as well as a representative sample of FDOT’s project files. Other documents, such as the August 2019 PAIR responses and E:\FR\FM\17JNN1.SGM 17JNN1 khammond on DSKJM1Z7X2PROD with NOTICES Federal Register / Vol. 85, No. 117 / Wednesday, June 17, 2020 / Notices FDOT’s August 2019 Self Assessment Summary Report, also informed this review. In addition, the team interviewed FDOT staff in person and via video conference. This review is organized around the six NEPA Assignment Program elements: Program management; documentation and records management; quality assurance/ quality control (QA/QC); legal sufficiency; performance measurement; and training program. In addition, the team considered three cross-cutting focus areas: (1) Interchange Access Requests (IAR); (2) project authorizations; and (3) permanent Emergency Repair (ER) projects. The team defined the timeframe for highway project environmental approvals subject to this third audit to be between May 2018 and April 2019, when 616 projects were approved. The team drew judgmental samples totaling 23 projects from data in FDOT’s online file system, Statewide Environmental Project Tracker (SWEPT). In the context of this report, descriptions of environmental documents are consistent with FDOT’s PD&E Manual. The FHWA judgmentally selected all Type 2 Categorical Exclusions (CEs) (21 projects) and all Environmental Assessments (EA) with Findings of No Significant Impacts (2 projects). The audit team selected all IARs that were pending for approval during the audit period (five projects) to determine if FDOT was following protocols for environmental review. The team reviewed all project authorization files in the audit period (252 project files) downloaded from FHWA Fiscal Management Information System (FMIS) to determine if the NEPA certification was completed for these projects prior to the authorization. For permanent ER projects, FHWA judgmentally sampled 41 projects in SWEPT and FMIS and identified those with construction contracts to determine if the NEPA was completed prior to authorization and if the NEPA scope was consistent with the contract. The team submitted a PAIR to FDOT that contained 20 questions covering all 6 NEPA Assignment Program elements. The FDOT responses to the PAIR were used to develop specific follow-up questions for the on-site interviews with FDOT staff. The team conducted a total of 18 interviews. Interview participants included staff from five FDOT District offices, Districts 3 through 7, and the FDOT Central Office. The team interviewed FDOT legal, financial, planning, and environmental staff. The team compared FDOT policies and procedures (including the VerDate Sep<11>2014 16:44 Jun 16, 2020 Jkt 250001 published 2019 PD&E Manual) for the audit focus areas to the information obtained during interviews and project file reviews to determine if FDOT’s performance of its MOU responsibilities are in accordance with FDOT policies and procedures and Federal requirements. Individual observations were documented during interviews and reviews and combined under the six NEPA Assignment Program elements. The audit results are described below by program element. Overall Audit Opinion The team recognizes that FDOT’s efforts have included implementing the requirements of the MOU by: Processing and approving projects; refining policies, procedures, and guidance documents; refining the SWEPT tracking system for ‘‘official project files’’; training staff; implementing a QA/QC Plan; and conducting a self assessment for monitoring compliance with the assumed responsibilities. The team found evidence of FDOT’s continuing efforts to train staff in clarifying the roles and responsibilities of FDOT staff, and in educating staff in an effort to assure compliance with all of the assigned responsibilities. During the third audit, the team identified numerous successful practices and one non-compliance observation that FDOT will need to address through corrective actions. These results came from a review of FDOT procedures, Self Assessment, PAIR responses, project files, and interviews with FDOT personnel. The FDOT has carried out the responsibilities it has assumed consistent with the intent of the MOU and FDOT’s application. The team finds that FDOT is in substantial compliance with the terms of the MOU. By addressing the observations in this report, FDOT will continue to assure a successful program. Successful Practices and Observations Successful practices are practices that the team believes are positive, and encourages FDOT to consider continuing or expanding those programs in the future. The team identified numerous successful practices in this report. Observations are items the team would like to draw FDOT’s attention to, which may improve processes, procedures, and/or outcomes. The team identified no observations in this report. A non-compliance observation is an instance where the team finds the State is not in compliance or is deficient with regard to a Federal regulation, statute, guidance, policy, State procedure, or the MOU. Non-compliance may also PO 00000 Frm 00133 Fmt 4703 Sfmt 4703 36659 include instances where the State has failed to secure or maintain adequate personnel and/or financial resources to carry out the responsibilities they have assumed. The FHWA expects the State to develop and implement corrective actions to address all non-compliance observations. The team identified one non-compliance observation during this third audit. The team acknowledges that sharing initial results during the site visit closeout and sharing the draft audit report with FDOT provided them the opportunity to clarify any observation, as needed, and/or begin implementing corrective actions to improve the program. The FHWA will also consider actions taken by FDOT to address these observations as part of the scope of Audit #4. The Audit Report addresses all six MOU program elements as separate discussions. Program Management Successful Practices The team learned through interviews that FDOT has a strong process for addressing its Self Assessment corrective actions. The process includes creating an action plan, dedicating staff to the plan, and identifying timeframes for follow up. The FHWA confirmed in FDOT’s Self Assessment documentation that FDOT provides a status regarding its ‘‘opportunities for improvement’’ which includes a strong process for corrective actions and a corrective action status update section. As FDOT’s NEPA Assignment Program matures, communication continues to improve between FDOT’s SMEs, consultants, and FDOT’s District staff. Through interviews the team confirmed the improved communication. For example, some districts invite environmental staff to the District Interchange Review Committee meetings to discuss IAR projects early in the process. The team encourages FDOT to implement this practice statewide. Another example of good communication is the process that OEM uses to implement new FHWA guidance. When new guidance is issued and FDOT changes its process, it communicates with the districts through changes in the manuals, periodic meetings, and training. During the audit, the team confirmed broad awareness of how FDOT chose to implement the FHWA June 12, 2018, Additional Flexibilities in CEs memorandum. The team learned that the enhancements to the SWEPT system continue to create efficiencies for the NEPA Assignment Program E:\FR\FM\17JNN1.SGM 17JNN1 36660 Federal Register / Vol. 85, No. 117 / Wednesday, June 17, 2020 / Notices implementation and FDOT continues to dedicate resources to improve SWEPT. Interviewees stated that these investments have resulted in more consistent documentation from the districts. Additional enhancements to SWEPT include cross references to FDOT’s PD&E manual and updates to the Type 1 CE, Type 2 CE, and reevaluation forms. The FDOT OEM now has direct responsibility and control for SWEPT updates, which allows for quicker revisions to SWEPT to adapt to its changing needs. For example, when FDOT implemented its process for documenting legal sufficiency determinations, modifications to SWEPT were needed to allow users to specify the type of legal sufficiency review being performed, such as for an Environmental Impact Statement or a Section 4(f) evaluation. The FDOT expeditiously addressed this need and now SWEPT permits users to distinguish type of document being reviewed for legal sufficiency. The SWEPT is considered by FDOT staff to be a significant program level QA/QC tool as it requires input of needed information prior to allowing the project to advance further. For example, a project cannot advance to FDOT OEM for QA/QC review until the QA/QC review is completed at the district level by the Environmental Administrator and the Engineering Administrator. Another example of SWEPT’s QA/QC control is the environmental certification process. The environmental certification document is used to document NEPA completion to authorize Federal funding in subsequent project phases. The SWEPT will generate the environmental certification only after NEPA has been approved. Quality Assurance/Quality Control Successful Practice During interviews, FDOT staff presented the Electronic Review Comments internal review platform as a tool that allows continuous engagement among environmental staff and SMEs. This tool allows continuous QC as the environmental project is developed. khammond on DSKJM1Z7X2PROD with NOTICES Legal Sufficiency The team’s review of FDOT’s legal sufficiency program found that FDOT has continued to structure the legal sufficiency process for the NEPA Assignment Program by having in-house counsel, as well as outside counsel with NEPA experience, available. The FDOT has made one legal sufficiency Section 4(f) determination during the audit time frame, implementing the internal procedures that were previously VerDate Sep<11>2014 16:44 Jun 16, 2020 Jkt 250001 developed. The FDOT’s Office of General Counsel (OGC) continues to participate in monthly coordination meetings and topic-specific meetings with OEM and the districts. It also reviews other environmental documents when requested for legal input. There remains close collaboration throughout the process amongst and between OGC, OEM, and the district attorneys. Successful Practice The SWEPT has a form that has the capability to document the legal sufficiency finding within the system. This tool ensures that proper documentation is captured in the project file without the need for additional supporting documentation. Training Program The FDOT’s training program continues to be exemplary. The FDOT has continued to focus resources ensuring staff, other agencies, and consultants are adequately trained. In the last year, FDOT again trained over 2,000 people in their NEPA process, endangered species, traffic analysis, cultural resources, and noise technical areas. Through information presented in the FDOT Self Assessment and through interviews of FDOT staff, the review team learned of the variety in and growth of FDOT’s environmental training program. The FDOT OEM promotes staff awareness of its Self Assessments through multiple notices to districts, a statewide Self Assessment kick-off Webinar, and the use of Self Assessment computer-based training courses. Through information presented in the FDOT Self Assessment and through interviews of FDOT staff, the team learned that FDOT is one of the few NEPA assignment States to internally promote its self assessments. Successful Practice The team learned through interviews of OEM staff that FDOT has increased its environmental training outreach to multiple disciplines. The Transportation Symposium has included environmental review training on a wide spectrum of topics. This year, the number of environmental training courses at the symposium increased by about 50 percent and were targeted to individuals from a broad range of disciplines. The team also learned that FDOT’s YouTube channel includes a variety of environmental training Webinars and videos. The FDOT has migrated its Web trainings to YouTube so that trainings are available and accessible to staff and PO 00000 Frm 00134 Fmt 4703 Sfmt 4703 the public through the MyFDOT channel. Performance Measures Based on information reported in FDOT’s 2019 Self Assessment Summary Report, FDOT is meeting or exceeding all performance measures. Documentation and Records Management The team reviewed the environmental documentation for 41 permanent repair projects to determine if the NEPA was completed prior to authorization and if the NEPA scope was consistent with the contract. All 41 permanent ER projects were determined compliant. The team reviewed all IAR projects (five projects) to determine if FDOT was following protocols for environmental review. The projects selected for the IAR file review had NEPA documents that were still under development; therefore, no conclusions could be drawn from the project file review. Successful Practice The FDOT Central Office has procedures that ensure IAR projects receive NEPA review as part of the FHWA IAR approval. Systems planning staff have been trained in SWEPT and verify that the NEPA documentation supports FHWA’s NEPA review expectations for IAR projects. Non-Compliance Observation #1: Some FDOT project files contain insufficient documentation to support the project authorization, environmental analysis, or decision. The team reviewed environmental documentation for 21 Type 2 CEs and 2 EAs to determine if the environmental review met Federal requirements. The team found CEs missing U.S. Coast Guard permits and Endangered Species Act consultation documentation (two projects). Finally, at the time FDOT prepared a Finding of No Significant Impact, the review team determined the scope of the EA was inconsistent with the State Transportation Improvement Program. The team also reviewed 252 Project Authorization files to determine if the NEPA certification was completed for these projects prior to the authorization. The team found that some Project Authorizations did not have documentation verifying that NEPA was completed (18 projects). The team’s observations on the environmental documentation and on the Project Authorization files were shared with FDOT for its consideration and initial responses. The team received responses from FDOT either resolving the observation or verifying missing E:\FR\FM\17JNN1.SGM 17JNN1 Federal Register / Vol. 85, No. 117 / Wednesday, June 17, 2020 / Notices documentation and/or procedural deficiencies. While these projects were found non-compliant at the time of the review, the missing documents have subsequently been uploaded by FDOT or FDOT committed to implementing a process improvement to address these concerns. Update from 2017 Audit #1, NonCompliance Observation #1 and 2018 Audit #2, Non-Compliance Observation #1: Some FDOT project files contain insufficient documentation to support the environmental analysis or decision. The FHWA reported a noncompliance observation related to some FDOT project files that lacked documentation to support the environmental analysis or decision as part of Audit #1 and Audit #2. The FDOT and FHWA have productively worked together to resolve documentation issues from these previous audits. The FDOT continues to implement process improvements to address noted procedural deficiencies. These improvements will be considered during the next audit. The FHWA and FDOT have also been working together through previous audits to mutually understand FDOT’s implementation of reasonable assurance that the project impacts would not be significant when full compliance for a project is not possible by the time the NEPA decision has been prepared. Through the interviews and project file reviews, the team received clarification from FDOT regarding the differences in the applicability of standard specifications and special provisions when addressing endangered species impacts and consultation, and how these tools support reasonable assurances of no significant impacts to support the NEPA decision. In addition, the team learned that FDOT provided training and clarifications internally to ensure reasonable assurance is appropriately applied during NEPA document development. khammond on DSKJM1Z7X2PROD with NOTICES Finalizing This Report The FHWA received no responses to the Federal Register Notice during the public comment period for the draft report. This report is a finalized version of the draft report without substantive changes. The FHWA will consider the results of this audit in preparing the scope of the next annual audit. The next audit report will include a summary that describes the status of FDOT’s corrective and other actions taken in response to this audit’s conclusions. [FR Doc. 2020–13005 Filed 6–16–20; 8:45 am] BILLING CODE 4910–22–P VerDate Sep<11>2014 16:44 Jun 16, 2020 Jkt 250001 DEPARTMENT OF TRANSPORTATION Federal Highway Administration [FHWA Docket No. FHWA–2020–0008] Surface Transportation Project Delivery Program; Ohio 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 four years of State participation to ensure compliance with program requirements. This notice announces and solicits comments on the fourth and final audit report for the Ohio Department of Transportation (ODOT). DATES: Comments must be received on or before July 17, 2020. 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 notifications 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 SUMMARY: PO 00000 Frm 00135 Fmt 4703 Sfmt 4703 36661 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. Megan Cogburn, Office of Project Development and Environmental Review, (202) 366–2056, megan.cogburn@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, 1200 New Jersey Avenue SE, Washington, DC 20590. Office hours are from 8:00 a.m. to 4:30 p.m., e.t., Monday through Friday, except Federal holidays. SUPPLEMENTARY INFORMATION: Electronic Access An electronic copy of this notice may be downloaded from the specific docket page at www.regulations.gov. Background The Surface Transportation Project Delivery Program, codified at 23 United States Code (U.S.C.) 327, commonly known as the NEPA Assignment Program, allows a State to assume FHWA’s responsibilities for environmental 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 the FHWA. The ODOT published its application for assumption under the NEPA Assignment Program on April 12, 2015, and made it available for public comment for 30 days. After considering public comments, ODOT submitted its application to FHWA on May 27, 2015. The application served as the basis for developing the memorandum of understanding (MOU) that identifies the responsibilities and obligations that ODOT would assume. The FHWA published a notice of the draft MOU in the Federal Register on October 15, 2015, at 80 FR 62153, with a 30-day comment period to solicit the views of the public and Federal agencies. After the comment period closed, FHWA and ODOT considered comments and executed the MOU. The FHWA and ODOT amended the MOU on June 6, 2018, to update recent national program guidance and objectives for consistency with other States under the NEPA Assignment Program. 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 four years of State participation and, after the fourth year, monitor compliance. The results of each audit must be made E:\FR\FM\17JNN1.SGM 17JNN1

Agencies

[Federal Register Volume 85, Number 117 (Wednesday, June 17, 2020)]
[Notices]
[Pages 36657-36661]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-13005]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

[FHWA Docket No. FHWA-2019-0040]


Surface Transportation Project Delivery Program; Florida DOT 
Audit #3 Report

AGENCY: Federal Highway Administration (FHWA), U.S. Department of 
Transportation (DOT).

ACTION: Notice.

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SUMMARY: The Surface Transportation Project Delivery 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 
responsible and liable for the responsibilities it has assumed, in lieu 
of FHWA. This program

[[Page 36658]]

mandates annual audits during each of the first four years to ensure 
the State's compliance with program requirements. This notice makes 
available the final report of the Florida Department of 
Transportation's (FDOT) third audit under the program.

FOR FURTHER INFORMATION CONTACT: Ms. Marisel Lopez Cruz, Office of 
Project Development and Environmental Review, (407) 867-6402, 
[email protected], or Mr. David Sett, Office of the Chief 
Counsel, (404) 562-3676, [email protected], Federal Highway 
Administration, U.S. 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 responsibilities for environmental 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. 
Effective December 14, 2016, FDOT assumed FHWA's responsibilities for 
environmental review and the responsibilities for reviews under other 
Federal environmental requirements.
    Section 327(g) of Title 23, U.S.C., requires the Secretary to 
conduct annual audits to ensure compliance with the memorandum of 
understanding during each of the first four years of State 
participation and, after the fourth year, monitor compliance. The 
results of each audit must be made available for public comment. This 
notice finalizes the findings of the third audit report on FDOT 
participation in the program. A draft version of this report was 
published in the Federal Register on February 21, 2020, at 85 FR 10212, 
and was available for public review and comments. The FHWA received no 
responses to the Federal Register Notice during the public comment 
period for the draft report.

    Authority: Section 1313 of Public Law 112-141; Section 6005 of 
Public Law 109-59; 23 U.S.C. 327; 23 CFR 773.

Nicole R. Nason,
Administrator, Federal Highway Administration.

Final: Surface Transportation Project Delivery Program, FHWA Audit #3 
of the Florida Department of Transportation, May 2018 to April 2019

Executive Summary

    This is the third audit of the Florida Department of 
Transportation's (FDOT) assumption of the National Environmental Policy 
Act (NEPA) responsibilities under the Surface Transportation Project 
Delivery Program. Under the authority of 23 U.S.C. 327, FDOT and the 
Federal Highway Administration (FHWA) executed a memorandum of 
understanding (MOU) on December 14, 2016, whereby FHWA assigned, and 
FDOT assumed, FHWA's NEPA responsibilities and liabilities for Federal-
aid highway projects and other related environmental reviews for 
transportation projects in Florida.
    The FHWA formed a team in January 2019 to conduct an audit of 
FDOT's performance according to the terms of the MOU. The team held 
internal meetings to prepare for an on-site visit to the Florida 
Division and FDOT offices. Prior to the on-site visit, the team 
reviewed FDOT's 2019 Project Development & Environment (PD&E) Manual 
and NEPA project files, FDOT's response to FHWA's pre-audit information 
request (PAIR), and FDOT's NEPA Assignment Self Assessment Summary 
Report. The team presented initial project file observations to FDOT 
Office of Environmental Management (OEM) on August 1, 2019. The team 
conducted interviews with FDOT and prepared preliminary audit results 
from September 23-26, 2019. The team presented these preliminary 
observations to FDOT OEM leadership on September 27, 2019.
    The FDOT continues to develop, revise, and implement procedures and 
processes required to carry out the NEPA Assignment Program. Overall, 
the team found that FDOT is committed to delivering a successful NEPA 
Program. This report describes numerous successful practices and one 
non-compliance observation. The FDOT has carried out the 
responsibilities it has assumed in keeping with the intent of the MOU 
and FDOT's application. Through this report, FHWA is notifying FDOT of 
the one non-compliance observation that requires FDOT to take 
corrective action. By addressing the observation in this report, FDOT 
will continue to assure a successful program. The report concludes with 
the status of FHWA's non-compliance observations from the first and 
second audit reviews, including any FDOT self-imposed corrective 
actions.

Background

    The purpose of the audits performed under the authority of 23 
U.S.C. 327 is to assess a State's compliance with the provisions of the 
MOU as well as all applicable Federal statutes, regulations, policies, 
and guidance. The FHWA's review and oversight obligation entails the 
need to collect information to evaluate the success of the NEPA 
Assignment Program; to evaluate a State's progress toward achieving its 
performance measures as specified in the MOU; and to collect 
information for the administration of the NEPA Assignment Program. This 
report summarizes the results of the third audit in Florida and 
includes a summary discussion that describes progress since the last 
audit. Following this audit, FHWA will conduct one more annual NEPA 
Assignment Program audit.

Scope and Methodology

    The overall scope of this audit review is defined both in statute 
(23 U.S.C. 327) and the MOU (Part 11). An audit generally is defined as 
an official and careful examination and verification of accounts and 
records, especially of financial accounts, by an independent unbiased 
body. With regard to accounts or financial records, audits may follow a 
prescribed process or methodology and be conducted by ``auditors'' who 
have special training in those processes or methods. The FHWA considers 
this review to meet the definition of an audit because it is an 
unbiased, independent, official, and careful examination and 
verification of records and information about FDOT's assumption of 
environmental responsibilities.
    The team consisted of NEPA subject matter experts (SME) from FHWA 
offices in Texas, Georgia, and Headquarters, as well as staff from 
FHWA's Florida Division. The diverse composition of the team, as well 
as the process of developing the review report and publishing it in the 
Federal Register, are intended to make this audit an unbiased official 
action taken by FHWA.
    The team conducted a careful examination of FDOT policies, 
guidance, and manuals pertaining to NEPA responsibilities, as well as a 
representative sample of FDOT's project files. Other documents, such as 
the August 2019 PAIR responses and

[[Page 36659]]

FDOT's August 2019 Self Assessment Summary Report, also informed this 
review. In addition, the team interviewed FDOT staff in person and via 
video conference. This review is organized around the six NEPA 
Assignment Program elements: Program management; documentation and 
records management; quality assurance/quality control (QA/QC); legal 
sufficiency; performance measurement; and training program. In 
addition, the team considered three cross-cutting focus areas: (1) 
Interchange Access Requests (IAR); (2) project authorizations; and (3) 
permanent Emergency Repair (ER) projects.
    The team defined the timeframe for highway project environmental 
approvals subject to this third audit to be between May 2018 and April 
2019, when 616 projects were approved. The team drew judgmental samples 
totaling 23 projects from data in FDOT's online file system, Statewide 
Environmental Project Tracker (SWEPT). In the context of this report, 
descriptions of environmental documents are consistent with FDOT's PD&E 
Manual. The FHWA judgmentally selected all Type 2 Categorical 
Exclusions (CEs) (21 projects) and all Environmental Assessments (EA) 
with Findings of No Significant Impacts (2 projects). The audit team 
selected all IARs that were pending for approval during the audit 
period (five projects) to determine if FDOT was following protocols for 
environmental review. The team reviewed all project authorization files 
in the audit period (252 project files) downloaded from FHWA Fiscal 
Management Information System (FMIS) to determine if the NEPA 
certification was completed for these projects prior to the 
authorization. For permanent ER projects, FHWA judgmentally sampled 41 
projects in SWEPT and FMIS and identified those with construction 
contracts to determine if the NEPA was completed prior to authorization 
and if the NEPA scope was consistent with the contract.
    The team submitted a PAIR to FDOT that contained 20 questions 
covering all 6 NEPA Assignment Program elements. The FDOT responses to 
the PAIR were used to develop specific follow-up questions for the on-
site interviews with FDOT staff.
    The team conducted a total of 18 interviews. Interview participants 
included staff from five FDOT District offices, Districts 3 through 7, 
and the FDOT Central Office. The team interviewed FDOT legal, 
financial, planning, and environmental staff.
    The team compared FDOT policies and procedures (including the 
published 2019 PD&E Manual) for the audit focus areas to the 
information obtained during interviews and project file reviews to 
determine if FDOT's performance of its MOU responsibilities are in 
accordance with FDOT policies and procedures and Federal requirements. 
Individual observations were documented during interviews and reviews 
and combined under the six NEPA Assignment Program elements. The audit 
results are described below by program element.

Overall Audit Opinion

    The team recognizes that FDOT's efforts have included implementing 
the requirements of the MOU by: Processing and approving projects; 
refining policies, procedures, and guidance documents; refining the 
SWEPT tracking system for ``official project files''; training staff; 
implementing a QA/QC Plan; and conducting a self assessment for 
monitoring compliance with the assumed responsibilities. The team found 
evidence of FDOT's continuing efforts to train staff in clarifying the 
roles and responsibilities of FDOT staff, and in educating staff in an 
effort to assure compliance with all of the assigned responsibilities.
    During the third audit, the team identified numerous successful 
practices and one non-compliance observation that FDOT will need to 
address through corrective actions. These results came from a review of 
FDOT procedures, Self Assessment, PAIR responses, project files, and 
interviews with FDOT personnel.
    The FDOT has carried out the responsibilities it has assumed 
consistent with the intent of the MOU and FDOT's application. The team 
finds that FDOT is in substantial compliance with the terms of the MOU. 
By addressing the observations in this report, FDOT will continue to 
assure a successful program.

Successful Practices and Observations

    Successful practices are practices that the team believes are 
positive, and encourages FDOT to consider continuing or expanding those 
programs in the future. The team identified numerous successful 
practices in this report. Observations are items the team would like to 
draw FDOT's attention to, which may improve processes, procedures, and/
or outcomes. The team identified no observations in this report.
    A non-compliance observation is an instance where the team finds 
the State is not in compliance or is deficient with regard to a Federal 
regulation, statute, guidance, policy, State procedure, or the MOU. 
Non-compliance may also include instances where the State has failed to 
secure or maintain adequate personnel and/or financial resources to 
carry out the responsibilities they have assumed. The FHWA expects the 
State to develop and implement corrective actions to address all non-
compliance observations. The team identified one non-compliance 
observation during this third audit.
    The team acknowledges that sharing initial results during the site 
visit closeout and sharing the draft audit report with FDOT provided 
them the opportunity to clarify any observation, as needed, and/or 
begin implementing corrective actions to improve the program. The FHWA 
will also consider actions taken by FDOT to address these observations 
as part of the scope of Audit #4.
    The Audit Report addresses all six MOU program elements as separate 
discussions.

Program Management

Successful Practices

    The team learned through interviews that FDOT has a strong process 
for addressing its Self Assessment corrective actions. The process 
includes creating an action plan, dedicating staff to the plan, and 
identifying timeframes for follow up. The FHWA confirmed in FDOT's Self 
Assessment documentation that FDOT provides a status regarding its 
``opportunities for improvement'' which includes a strong process for 
corrective actions and a corrective action status update section.
    As FDOT's NEPA Assignment Program matures, communication continues 
to improve between FDOT's SMEs, consultants, and FDOT's District staff. 
Through interviews the team confirmed the improved communication. For 
example, some districts invite environmental staff to the District 
Interchange Review Committee meetings to discuss IAR projects early in 
the process. The team encourages FDOT to implement this practice 
statewide. Another example of good communication is the process that 
OEM uses to implement new FHWA guidance. When new guidance is issued 
and FDOT changes its process, it communicates with the districts 
through changes in the manuals, periodic meetings, and training. During 
the audit, the team confirmed broad awareness of how FDOT chose to 
implement the FHWA June 12, 2018, Additional Flexibilities in CEs 
memorandum.
    The team learned that the enhancements to the SWEPT system continue 
to create efficiencies for the NEPA Assignment Program

[[Page 36660]]

implementation and FDOT continues to dedicate resources to improve 
SWEPT. Interviewees stated that these investments have resulted in more 
consistent documentation from the districts. Additional enhancements to 
SWEPT include cross references to FDOT's PD&E manual and updates to the 
Type 1 CE, Type 2 CE, and reevaluation forms. The FDOT OEM now has 
direct responsibility and control for SWEPT updates, which allows for 
quicker revisions to SWEPT to adapt to its changing needs. For example, 
when FDOT implemented its process for documenting legal sufficiency 
determinations, modifications to SWEPT were needed to allow users to 
specify the type of legal sufficiency review being performed, such as 
for an Environmental Impact Statement or a Section 4(f) evaluation. The 
FDOT expeditiously addressed this need and now SWEPT permits users to 
distinguish type of document being reviewed for legal sufficiency.
    The SWEPT is considered by FDOT staff to be a significant program 
level QA/QC tool as it requires input of needed information prior to 
allowing the project to advance further. For example, a project cannot 
advance to FDOT OEM for QA/QC review until the QA/QC review is 
completed at the district level by the Environmental Administrator and 
the Engineering Administrator. Another example of SWEPT's QA/QC control 
is the environmental certification process. The environmental 
certification document is used to document NEPA completion to authorize 
Federal funding in subsequent project phases. The SWEPT will generate 
the environmental certification only after NEPA has been approved.

Quality Assurance/Quality Control

Successful Practice

    During interviews, FDOT staff presented the Electronic Review 
Comments internal review platform as a tool that allows continuous 
engagement among environmental staff and SMEs. This tool allows 
continuous QC as the environmental project is developed.

Legal Sufficiency

    The team's review of FDOT's legal sufficiency program found that 
FDOT has continued to structure the legal sufficiency process for the 
NEPA Assignment Program by having in-house counsel, as well as outside 
counsel with NEPA experience, available. The FDOT has made one legal 
sufficiency Section 4(f) determination during the audit time frame, 
implementing the internal procedures that were previously developed. 
The FDOT's Office of General Counsel (OGC) continues to participate in 
monthly coordination meetings and topic-specific meetings with OEM and 
the districts. It also reviews other environmental documents when 
requested for legal input. There remains close collaboration throughout 
the process amongst and between OGC, OEM, and the district attorneys.

Successful Practice

    The SWEPT has a form that has the capability to document the legal 
sufficiency finding within the system. This tool ensures that proper 
documentation is captured in the project file without the need for 
additional supporting documentation.

Training Program

    The FDOT's training program continues to be exemplary. The FDOT has 
continued to focus resources ensuring staff, other agencies, and 
consultants are adequately trained. In the last year, FDOT again 
trained over 2,000 people in their NEPA process, endangered species, 
traffic analysis, cultural resources, and noise technical areas. 
Through information presented in the FDOT Self Assessment and through 
interviews of FDOT staff, the review team learned of the variety in and 
growth of FDOT's environmental training program.
    The FDOT OEM promotes staff awareness of its Self Assessments 
through multiple notices to districts, a statewide Self Assessment 
kick-off Webinar, and the use of Self Assessment computer-based 
training courses. Through information presented in the FDOT Self 
Assessment and through interviews of FDOT staff, the team learned that 
FDOT is one of the few NEPA assignment States to internally promote its 
self assessments.

Successful Practice

    The team learned through interviews of OEM staff that FDOT has 
increased its environmental training outreach to multiple disciplines. 
The Transportation Symposium has included environmental review training 
on a wide spectrum of topics. This year, the number of environmental 
training courses at the symposium increased by about 50 percent and 
were targeted to individuals from a broad range of disciplines.
    The team also learned that FDOT's YouTube channel includes a 
variety of environmental training Webinars and videos. The FDOT has 
migrated its Web trainings to YouTube so that trainings are available 
and accessible to staff and the public through the MyFDOT channel.

Performance Measures

    Based on information reported in FDOT's 2019 Self Assessment 
Summary Report, FDOT is meeting or exceeding all performance measures.

Documentation and Records Management

    The team reviewed the environmental documentation for 41 permanent 
repair projects to determine if the NEPA was completed prior to 
authorization and if the NEPA scope was consistent with the contract. 
All 41 permanent ER projects were determined compliant.
    The team reviewed all IAR projects (five projects) to determine if 
FDOT was following protocols for environmental review. The projects 
selected for the IAR file review had NEPA documents that were still 
under development; therefore, no conclusions could be drawn from the 
project file review.

Successful Practice

    The FDOT Central Office has procedures that ensure IAR projects 
receive NEPA review as part of the FHWA IAR approval. Systems planning 
staff have been trained in SWEPT and verify that the NEPA documentation 
supports FHWA's NEPA review expectations for IAR projects.
    Non-Compliance Observation #1: Some FDOT project files contain 
insufficient documentation to support the project authorization, 
environmental analysis, or decision.
    The team reviewed environmental documentation for 21 Type 2 CEs and 
2 EAs to determine if the environmental review met Federal 
requirements. The team found CEs missing U.S. Coast Guard permits and 
Endangered Species Act consultation documentation (two projects). 
Finally, at the time FDOT prepared a Finding of No Significant Impact, 
the review team determined the scope of the EA was inconsistent with 
the State Transportation Improvement Program.
    The team also reviewed 252 Project Authorization files to determine 
if the NEPA certification was completed for these projects prior to the 
authorization. The team found that some Project Authorizations did not 
have documentation verifying that NEPA was completed (18 projects).
    The team's observations on the environmental documentation and on 
the Project Authorization files were shared with FDOT for its 
consideration and initial responses. The team received responses from 
FDOT either resolving the observation or verifying missing

[[Page 36661]]

documentation and/or procedural deficiencies. While these projects were 
found non-compliant at the time of the review, the missing documents 
have subsequently been uploaded by FDOT or FDOT committed to 
implementing a process improvement to address these concerns.
    Update from 2017 Audit #1, Non-Compliance Observation #1 and 2018 
Audit #2, Non-Compliance Observation #1: Some FDOT project files 
contain insufficient documentation to support the environmental 
analysis or decision.
    The FHWA reported a non-compliance observation related to some FDOT 
project files that lacked documentation to support the environmental 
analysis or decision as part of Audit #1 and Audit #2. The FDOT and 
FHWA have productively worked together to resolve documentation issues 
from these previous audits. The FDOT continues to implement process 
improvements to address noted procedural deficiencies. These 
improvements will be considered during the next audit.
    The FHWA and FDOT have also been working together through previous 
audits to mutually understand FDOT's implementation of reasonable 
assurance that the project impacts would not be significant when full 
compliance for a project is not possible by the time the NEPA decision 
has been prepared. Through the interviews and project file reviews, the 
team received clarification from FDOT regarding the differences in the 
applicability of standard specifications and special provisions when 
addressing endangered species impacts and consultation, and how these 
tools support reasonable assurances of no significant impacts to 
support the NEPA decision. In addition, the team learned that FDOT 
provided training and clarifications internally to ensure reasonable 
assurance is appropriately applied during NEPA document development.

Finalizing This Report

    The FHWA received no responses to the Federal Register Notice 
during the public comment period for the draft report. This report is a 
finalized version of the draft report without substantive changes.
    The FHWA will consider the results of this audit in preparing the 
scope of the next annual audit. The next audit report will include a 
summary that describes the status of FDOT's corrective and other 
actions taken in response to this audit's conclusions.

[FR Doc. 2020-13005 Filed 6-16-20; 8:45 am]
BILLING CODE 4910-22-P