Surface Transportation Project Delivery Program; Alaska Department of Transportation Second Audit Report, 39260-39265 [2020-14004]
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Federal Register / Vol. 85, No. 126 / Tuesday, June 30, 2020 / Notices
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[FR Doc. 2020–14086 Filed 6–29–20; 8:45 am]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
[FHWA Docket No. FHWA–2019–0032]
Surface Transportation Project
Delivery Program; Alaska Department
of Transportation Second Audit Report
Federal Highway
Administration (FHWA), U.S.
Department of Transportation (DOT).
ACTION: Notice.
AGENCY:
The Moving Ahead for
Progress in the 21st Century Act (MAP–
21) established the Surface
Transportation Project Delivery Program
that allows a State to assume FHWA’s
environmental responsibilities for
environmental review, consultation, and
compliance under the National
Environmental Policy Act (NEPA) for
Federal highway projects. When a State
assumes these Federal responsibilities,
the State becomes solely responsible
and liable for 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 makes available the final
second audit report for the Alaska
Department of Transportation and
Public Facilities (DOT&PF).
FOR FURTHER INFORMATION CONTACT: Mr.
David T. Williams, Office of Project
Development and Environmental
Review, (202) 366–4074,
David.Williams@dot.gov, or 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
20905. Office hours are from 8:00 a.m.
to 4:30 p.m., E.T., Monday through
Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION:
SUMMARY:
Electronic Access
An electronic copy of this notice may
be downloaded from the specific docket
page at www.regulations.gov.
Background
The Surface Transportation Project
Delivery Program, codified at 23 U.S.C.
327, commonly known as the NEPA
Assignment Program, allows a State to
assume FHWA’s environmental
responsibilities for review, consultation,
and compliance for Federal highway
projects. When a State assumes these
Federal responsibilities, the State
becomes solely liable for carrying out
the responsibilities it has assumed, in
lieu of FHWA. The DOT&PF published
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its application for NEPA assumption on
May 1, 2016, and made it available for
public comment for 30 days. After
considering public comments, DOT&PF
submitted its application to FHWA on
July 12, 2016. The application served as
the basis for developing a memorandum
of understanding (MOU) that identified
the responsibilities and obligations that
DOT&PF would assume. The FHWA
published a notice of the draft MOU in
the Federal Register on August 25,
2017, with a 30-day comment period to
solicit the views of the public and
Federal agencies. After the close of the
comment period, FHWA and DOT&PF
considered comments and proceeded to
execute the MOU. Effective November
13, 2017, DOT&PF assumed FHWA’s
responsibilities under NEPA, and the
responsibilities for NEPA-related
Federal environmental laws described
in the MOU.
Section 327(g) of title 23, U.S.C.,
requires the Secretary of Transportation
to conduct annual audits during each of
the first 4 years of State participation.
After the fourth year, the Secretary shall
monitor the State’s compliance with the
written agreement. The FHWA
published a notice in the Federal
Register at 85 FR 8089 on February 12,
2020, soliciting comments for 30 days,
pursuant to 23 U.S.C. 327(g). The
FHWA received comments on the draft
report from the American Road &
Transportation Builders Association
(ARTBA). The ARTBA’s comments were
supportive of the Surface Transportation
Project Delivery Program and did not
relate specifically to the audit. The team
has considered these comments in
finalizing this audit report. This notice
makes available the final report of
DOT&PF’s second audit under the
program.
Authority: Section 1313 of Public Law
112–141; Section 6005 of Public Law 109–59;
23 U.S.C 327; 23 CFR part 773.
Nicole R. Nason,
Administrator, Federal Highway
Administration.
Surface Transportation Project Delivery
Program, FHWA Audit of the Alaska
Department of Transportation
April 15–19, 2019
Executive Summary
This report summarizes the results of
the Federal Highway Administration’s
(FHWA) second audit of the Alaska
Department of Transportation and
Public Facilities’ (DOT&PF) assumption
of FHWA’s project-level National
Environmental Policy Act (NEPA)
responsibilities and obligations
pursuant to a 23 U.S.C. 327
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Memorandum of Understanding (MOU).
The DOT&PF entered the NEPA
Assignment Program 1 after more than 8
years of experience making FHWA
NEPA Categorical Exclusion (CE)
determinations pursuant to 23 U.S.C.
326 (beginning September 22, 2009).
Alaska’s MOU was signed on November
3, 2017, and became effective on
November 13, 2017. Three Federal-aid
projects were excluded from the MOU,
but the environmental process for these
projects has since been completed.
Currently, FHWA’s NEPA
responsibilities in Alaska include
oversight and auditing of the DOT&PF’s
execution of the NEPA Assignment
Program and certain activities excluded
from the MOU such as projects
advanced by direct recipients other than
DOT&PF.
The FHWA audit team began
preparing for the site visit in October
2018. This preparation included a
review of DOT&PF’s NEPA project files,
DOT&PF’s response to FHWA’s preaudit information request (PAIR), and
consideration of DOT&PF’s selfassessment summary report. The audit
team completed the site visit for the
second audit April 15–19, 2019.
The audit team appreciates DOT&PF’s
responsiveness to questions on the
status of their corrective actions for the
first audit non-compliance and general
observations. This report concludes
with a status update for FHWA’s
observations from the first audit report.
The audit team finds DOT&PF in
substantial compliance with the terms
of the MOU in meeting the
responsibilities it has assumed. This
report does not identify any noncompliance observations; it does
identify six general observations as well
as several successful practices.
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Background
The NEPA Assignment Program
allows a State to assume FHWA’s
environmental responsibilities for
review, consultation, and compliance
for highway projects. This program is
codified at 23 U.S.C. 327. When a State
assumes these Federal responsibilities
for NEPA project decisionmaking, the
State becomes solely responsible and
solely liable for carrying out these
obligations in lieu of and without
further NEPA-related approval by
FHWA.
The FHWA assigned responsibility for
making project NEPA approvals and the
responsibility for making other related
1 Throughout this report, FHWA uses the term
‘‘NEPA Assignment Program’’ to refer to the
program codified at 23 U.S.C. 327 (Surface
Transportation Project Delivery Program).
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environmental decisions for highway
projects to DOT&PF on November 3,
2017, which became effective on
November 13, 2017. The MOU specifies
those FHWA responsibilities assigned to
DOT&PF. Examples of responsibilities
DOT&PF has assumed in addition to
NEPA include Section 7 consultation
under the Endangered Species Act
(ESA) and consultation under Section
106 of the National Historic
Preservation Act (NHPA).
This is the second of four required
annual audits pursuant to 23 U.S.C.
327(g) and Part 11 of the MOU. Audits
are the primary mechanism through
which FHWA oversees DOT&PF’s
compliance with the MOU and the
NEPA Assignment Program
requirements. This includes ensuring
compliance with applicable Federal
laws and policies, evaluating DOT&PF’s
progress toward achieving the
performance measures identified in
Section 10.2 of the MOU, 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 included NEPA
subject matter experts from FHWA
offices in Juneau, Alaska; Washington,
District of Columbia; Atlanta, Georgia;
Sacramento, California; and Lakewood,
Colorado.
Scope and Methodology
The audit team examined a sample of
DOT&PF’s NEPA project files, DOT&PF
responses to the PAIR, and DOT&PF’s
Self-Assessment Summary report. The
audit team also interviewed DOT&PF
staff and reviewed DOT&PF policies,
guidance, and manuals pertaining to
NEPA responsibilities. All reviews
focused on objectives related to the six
NEPA Assignment Program elements:
Program Management; Documentation
and Records Management; Quality
Assurance/Quality Control (QA/QC);
Legal Sufficiency; Training; and
Performance Measurement.
Project File Review: To consider
DOT&PF staff adherence to program
procedures and Federal requirements,
the audit team selected a sample of
individual project files for which the
environmental review had been
completed. The audit team did not
evaluate DOT&PF’s project-specific
decisions, but rather compliance with
assumed responsibilities and adherence
to their own processes and procedures
for project-level environmental decision
making. The 43 sampled files included
Programmatic CEs (actions approved in
the regional offices), CEs and
Environmental Assessments (EAs)
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(approved in the Statewide
Environmental Office (SEO)), and reevaluations (approved by the same
office as the original environmental
document).
PAIR Review: The audit team
reviewed the PAIR, which consisted of
61 questions about specific elements in
the MOU that DOT&PF must
implement. These responses were used
to develop specific follow-up questions
for the on-site interviews with DOT&PF
staff.
DOT&PF Self-Assessment Review:
The audit team reviewed DOT&PF’s
Self-Assessment summary report and
used it to develop specific follow-up
questions for the on-site interviews with
DOT&PF staff. The NEPA Assignment
Program MOU Section 8.2.5 requires the
DOT&PF to conduct annual selfassessments of its QA/QC procedures
and performance.
Interviews: The audit team conducted
18 on-site interviews and 1 phone
interview with DOT&PF staff.
Interviewees included staff from each of
DOT&PF’s three regional offices and its
SEO. The audit team invited DOT&PF
staff, middle management, and
executive management to participate in
interviews to ensure they represented a
diverse range of staff expertise,
experience, and program responsibility.
In addition, the audit team conducted
two phone interviews of attorneys with
the Alaska Department of Law and three
phone interviews with staff at the U.S.
Fish and Wildlife Service (USFWS)
Field Office in Anchorage and the
Conservation Planning Assistance
Branch in Fairbanks.
Policy/Guidance/Manual Review:
Throughout the document reviews and
interviews, the audit team verified
information on DOT&PF’s NEPA
Assignment Program including DOT&PF
policies, guidance, manuals, and
reports. This included the
Environmental Program Manual (EPM),
the NEPA Assignment QA/QC Plan, the
NEPA Assignment Program Training
Plan, and the NEPA Assignment SelfAssessment Summary report.
Overall Audit Opinion
This report identifies six observations
and several successful practices. The
audit team finds DOT&PF is
substantially in compliance with the
provisions of the MOU, has carried out
the environmental responsibilities it
assumed through the NEPA Assignment
Program, and is taking steps to address
observations identified in the first audit.
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Non-Compliance Observations
The audit team made no noncompliance observations in the second
audit.
Observations and Successful Practices
This section summarizes the audit
team’s observations of DOT&PF’s NEPA
Assignment Program implementation,
and successful practices DOT&PF may
want to continue or expand. The audit
team has observations which DOT&PF
may use to improve processes,
procedures, or outcomes. The DOT&PF
may have already taken steps to address
or improve upon the audit team’s
observations, but at the time of the audit
they appeared to be areas where
DOT&PF could make improvements.
Successful practices are positive results
that FHWA would like to commend
DOT&PF on developing. These may
include ideas or concepts that DOT&PF
has planned but not yet implemented.
Successful practices and observations
are described under the six MOU topic
areas: Program Management,
Documentation and Records
Management, QA/QC, Training
Program, Performance Measures, and
Legal Sufficiency.
This audit report provides an
opportunity for DOT&PF to take further
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 the third audit. The third audit
report will include a summary
discussion that describes progress since
this audit.
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Program Management
Program Management includes the
overall administration of the NEPA
Assignment Program. The audit team
noted the following successful practices
and observations related to Program
Management.
Successful Practices
Based on interviews, DOT&PF plans
to update the entire EPM on a 2-year
cycle. The SEO indicated that in the
interval between EPM updates, topicspecific memoranda would be
developed in collaboration with the
regional DOT&PF offices to address
guidance, policy, or procedure change
in advance of the 2020 EPM revision.
The FHWA acknowledges DOT&PF’s
current efforts to develop guidance
memoranda in the following areas:
• Floodplains: The DOT&PF
identified the need for additional
floodplain guidance. The audit team
observed that the SEO and some
regional staff have varying expectations
regarding analysis of floodplain
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encroachments and QA/QC
requirements. The DOT&PF is
encouraged to revise the EPM to clarify
what technical analyses and reports may
be required as part of complete project
documentation, particularly in the
context of hydraulic analyses.
• Planning and Environment Linkage
(PEL): The DOT&PF has issued a request
for proposals for a consultant to develop
PEL guidance. The audit team found
PEL studies were evaluated as actions
needing a NEPA review; however PEL
studies are not subject to NEPA. The
audit team learned through interviews
that DOT&PF has several ongoing PEL
studies, so guidance will be timely.
The audit team, through its
interviews, noted successful DOT&PF
collaboration with the USFWS, the
National Marine Fisheries Service
(NMFS), and the State Historic
Preservation Office (SHPO). The SEO
leadership stated that agencies are
engaged to maintain and improve
relationships.
• Interviews with USFWS staff
confirmed that USFWS has a good
working relationship with DOT&PF.
Both DOT&PF regional staff and USFWS
desire to have more regular meetings to
further improve relationships and
accelerate project delivery. Examples of
discussion topics include: Developing
best management practices, discussing
programmatic approaches, and
improving scoping documents.
• The DOT&PF Self-Assessment
Summary report describes the SEO
coordination with NMFS to clarify
procedures for biological opinions and
has issued a guidance memo to DOT&PF
regional offices.
• The SEO and regional Section 106
subject matter experts collaborate with
SHPO on concerns, challenges, and
compliance issues.
Observation #1: Applicability of
Existing Interagency Agreements
Section 5.1.3 of the MOU requires the
DOT&PF to work with FHWA and the
resource agencies to modify existing
interagency agreements within 6 months
of the effective date of the MOU. The
audit team recognizes that the four
different resource agencies’ (U.S. Army
Corps of Engineers, NMFS, USFWS, and
U.S. Soil Conservation Service (now
Natural Resources Conservation
Service)) Programmatic Agreements
(PA) that were executed in 1985 have
not been applicable since the DOT&PF
implemented the CE Assignment
Program (23 U.S.C. 326) in 2009.
Therefore, none of these agreements
apply to the current NEPA Assignment
Program under 23 U.S.C. 327. The
DOT&PF staff may find it useful to meet
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with all its resource agency partners to
clarify their roles under the NEPA
Assignment Program. Also, if DOT&PF
chooses to enter into interagency
agreements per Section 5.1.4 of the
MOU, DOT&PF may develop provisions
that make the program more efficient
and clarify the State’s role as
decisionmaker.
Observation #2: DOT&PF Delegation of
Authority for NEPA Approvals
Section 3.3.1 of the MOU requires
DOT&PF to make NEPA approvals (CE
determinations, findings of no
significant impact, or records of
decision). Project file reviews and
interviews conducted for this audit
revealed inconsistencies regarding the
delegation of NEPA approvals within
DOT&PF. Although interviews with
SEO staff indicated SEO has a written
blanket delegation of signature authority
for the office, interviews with DOT&PF
regional offices revealed variability in
procedures for Regional Environmental
Managers (REMs) to delegate their
approval authority. Some of the project
files the team reviewed contained
emails that addressed the delegation of
approval authority for that project while
other project files did not. The review
team encourages DOT&PF to review and
standardize its procedures for
delegation of authority for NEPA
approvals to clarify approval
responsibility and minimize risk of
individuals making NEPA approvals
without authorization.
Observation #3: Staff Capacity
Sections 4.2.1. and 4.2.2. of the MOU
outline the requirements for the State’s
commitment of resources and adequate
organizational and staff capability. The
audit team learned through interviews
that SEO and some regional offices have
had moderate to high staff turnover
since the MOU took effect. Several of
the recent SEO leadership staff have
retired or been promoted. This issue is
a recurrence from Audit #1 (see Audit
#1, report Observation #3). Under the
MOU, DOT&PF must maintain
‘‘adequate’’ organizational and staff
capability, including appropriate
environmental, technical, legal, and
managerial expertise to perform its
assumed responsibilities under this
MOU and applicable Federal laws.
Although any determination of
adequacy is a challenge given the
expectation for normal staff turnover,
DOT&PF could consider monitoring the
State’s requirement under the MOU to
maintain organizational and staff
capacity, as well as potential staff
adequacy risks to the program. We
encourage DOT&PF leadership to assess
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the adequacy of organizational and staff
capacity annually. This assessment
would help the State demonstrate that
DOT&PF is actively evaluating its
commitment of resources with respect
to this MOU requirement.
Documentation and Records
Management
From March 1, 2018, through October
30, 2018, DOT&PF made 161 project
decisions (e.g., Section 4(f) approvals)
and NEPA approvals. By employing
both judgmental and random sampling
methods, the audit team reviewed NEPA
project documentation for 43 of these
decisions/approvals.
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Observation #4: Documentation of
Environmental Commitments
Section 5.1.1 of the MOU requires the
State to follow Federal laws,
regulations, policy, and procedures to
implement the responsibilities assumed.
Project file reviews and interviews
conducted for this audit revealed
inconsistencies regarding how DOT&PF
documents environmental commitments
and ensures that environmental
commitments made during the NEPA
process are carried through the project
development process and into
construction. Interviews with DOT&PF
regional offices and SEO contained
specific questions about environmental
commitments. Reponses revealed
varying regional office staff opinions
regarding Environmental Impact
Analyst (Analyst) and REM
responsibilities related to commitments
and SEO concern with the transference
process from NEPA through design and
into construction. To address an issue
with environmental commitments
identified in an earlier program review
by the Alaska Division, DOT&PF
developed a short-term corrective action
to prepare written guidance that would
be implemented no later than December
31, 2018. This written guidance has
been drafted, but not implemented as of
April 15–19, 2019, the week of the audit
site visit.
Quality Assurance/Quality Control
Under the MOU, DOT&PF agreed to
carry out regular QA/QC activities to
ensure the assumed responsibilities are
conducted in accordance with
applicable law and the MOU. The audit
team noted the following successful
practices and observations related to
QA/QC.
Successful Practices
Analysts in the DOT&PF south coast
region have a role in the QA/QC
process, as they conduct peer reviews of
the documentation in their project files.
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This encourages consistency in the
project review process among Analysts
and functions as a valuable training
opportunity so that all Analysts can
recognize errors and omissions.
The REMs and SEO staff stated that
collaboration among regional staff, SEO,
and legal staff during development of
draft environmental documents, where
it occurred, improved document quality.
Further, they stated this reduced the
number of errors found during formal
QA/QC and when reviewing project
files during DOT&PF’s Self-Assessment.
Once DOT&PF implements its
Comprehensive Environmental Data and
Reporting (CEDAR) System, DOT&PF
stated that the system should eliminate
inconsistencies in project name, project
identifiers and environmental
documentation which DOT&PF also
identified as a potential issue in its SelfAssessment Summary report. By
transferring project information from
another State system, CEDAR should
provide a system control that enhances
data integrity.
Observation #5: Inconsistency in Project
Termini and Statewide Transportation
Improvement Program (STIP)
Section 3.3.1 of the MOU requires
DOT&PF, at the time of NEPA approval
(CE determination, finding of no
significant impact, or record of
decision), to ensure that the project’s
design concept, scope, and funding is
consistent with current planning
documents. The audit team’s document
review of a sample of projects found one
project file with an inconsistency
between project termini shown in a
project plan and that described in the
STIP. The DOT&PF’s Self-Assessment
found similar inconsistencies. This was
observed both for programmatic CEs
(approved at the region level) and nonprogrammatic CEs (approved at the SEO
level) that are required to undergo a QC
review by REMs in accordance with
Section 3.3.2 of the EPM. To help
eliminate these types of inconsistencies,
DOT&PF may want to consider
providing additional tools to REMs for
use when approving environmental
documents, such as a checklist of items
to be verified.
Training
Under Part 12 of the MOU, DOT&PF
committed to implementing training
necessary to meet its environmental
obligations assumed under the NEPA
Assignment Program. The DOT&PF also
committed to assessing its need for
training, developing a training plan, and
updating the training plan on an annual
basis in consultation with FHWA and
other Federal agencies as appropriate.
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Successful Practices
The SEO worked with a consultant to
customize an advanced NEPA training
based on the Alaska NEPA Assignment
Program to make it specific for issues
typically encountered in Alaska.
The DOT&PF south coast region uses
a memorandum to serve as a part of all
new employee’s orientation and as a
precursor to more formal training. The
REM issues it to all new Analysts. This
memorandum outlines to whom the
new employees should talk in their first
2 weeks to help firmly establish
relationships and gain an overview of
environmental program components.
All DOT&PF regional offices
implement individual coaching and onthe-job training practices, which are
important mechanisms by which
Analysts, especially new Analysts,
acquire some of the knowledge and
skills necessary to perform their job
functions.
Observations
Observation #6: Training Plan Update
Section 12.2 of the MOU commits
DOT&PF and FHWA to update the
DOT&PF training plan annually in
consultation with other Federal agencies
as appropriate. The DOT&PF’s Training
Plan had not yet been updated as of the
date of the site visit. The audit team
encourages the State to re-evaluate its
entire plan for training in light of its
budget limitations, so that there is a
realistic means of delivering necessary
training, especially for new staff. The
State may consider further leveraging its
Web-based training capabilities to meet
training needs.
Performance Measures
The MOU’s inclusion of performance
measures for the DOT&PF to develop
and track progress fits well within
FHWA’s overall approach to have
programs define specific goals that
could be measured by existing data or
by combinations or indexes of existing
data. For example, in recent years,
FHWA has promulgated performance
measure requirements in support of
National Performance Management for
freight programs (January 18, 2017),
pavement and bridge condition (January
18, 2018), as well as for FHWA’s Offices
of Safety (March 15, 2016), and
Operations (May 2012). In each of these
cases, as well as for the FHWA Strategic
Plan, there is a requirement for the
development and definition of
objectives/goals and indicators/
measures of overall program
performance.
According to Part 10 of the MOU,
DOT&PF will report its progress toward
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meeting its performance measures in the
self-assessment summary that is
considered by FHWA’s audit team. The
January 2019 DOT&PF Self-Assessment
Summary report identified 13
performance measures for which 2
could not be reported due to lack of a
baseline, and 4 measures were based on
one approved EA project. Therefore,
almost half of the performance measures
could not be reported because either no
baseline for comparison was developed
or the measure was constrained to apply
only to EA or Environmental Impact
Statement (EIS) projects, even though
more than 95 percent of NEPA
approvals were CEs.
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Legal Sufficiency
During the audit period, one attorney
from the Alaska Department of Law
(DOL) Transportation Section continued
to be assigned to the NEPA Assignment
Program. The assigned attorney has
significant experience with Federal-aid
highway projects and the Federal
environmental process. The attorney
works directly with DOT&PF staff on
project environmental documents.
Based on the interviews, the review
process followed the standard set forth
in the EPM, with the attorney involved
early in project development, normally
reviewing NEPA documents prior to
their circulation to resource agencies for
comment. During the audit period, the
attorney reviewed three EAs and
multiple re-evaluations of an older EIS.
The attorney did not issue a formal
finding of legal sufficiency during the
audit period, as he did not review a
Final EIS or Section 4(f) Evaluation (per
23 CFR 771.125[b] or 774.7[d]) during
that time.
The DOL management stated that
while only one attorney is currently
assigned to the program, should
workload increase significantly, DOL
would assign another attorney to NEPA
work.
Status of Observations From Audit #1
(April 2018)
This section describes the actions
DOT&PF has taken (or is taking) in
response to audit observations,
including non-compliance observations
made during the first audit. Any noncompliance observations require
DOT&PF to take corrective action.
Non-Compliance Observation #1:
Ensure an Opportunity for a Public
Hearing is Provided When Required.
The DOT&PF responded that FHWA’s
non-compliance observation was made
prior to the completion of the DOT&PF’s
EPM (February 2018). Based on the
current edition of the EPM, the
requirements for public hearing based
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on project type are adequately
documented and no additional
instances of non-compliance were found
by the audit team during the second
audit. The FHWA has found the
corrective action to be satisfactory in
addressing the non-compliance
observation.
Observation #1: Programmatic
Section 106 compliance and Section 4(f)
compliance. The DOT&PF recognized
possible risk in applying its Section 106
programmatic agreement (PA) to
projects that require integration of the
Section 106 process with Section 4(f)
requirements. To address this risk, SEO
consulted with SHPO and created a
letter of agreement to provide DOT&PF’s
notification to SHPO of the intent to
make a de minimis determination on a
project processed under the Section 106
PA as a streamlined review/
programmatic allowance. In this audit,
the team did not identify instances
where the streamlined Section 106 form
had been used to support a Section 4(f)
use.
Observation #2: Lack of a Process to
Implement Planning Consistency at
Time of a NEPA Decision. In response
to this observation, DOT&PF stated that
the project manager is responsible to
review and document the availability of
funding per Section 420.1.1 of the
Preconstruction Manual and that this
information is communicated to
environmental staff through Section
1.1.1 of the EPM. The DOT&PF also
referenced Section 1.3.1 of the EPM in
supporting the planning consistency
requirements. However, the audit team
found an inconsistency regarding a
project’s termini as shown in a project
plan and how that project was described
in the STIP. This was identified as an
observation in this audit (Observation
#5). The audit team recognizes that
DOT&PF’s manuals offer general
guidance, but may want to consider
providing additional tools to REMs for
use when approving environmental
documents, such as a checklist of items
to be verified to ensure consistency with
transportation plans.
Observation #3: Staff Capacity,
Workload, and Turnover. During Audit
#1, several DOT&PF staff explained
through interviews, that since the
State’s entry into the full NEPA
Assignment Program, staff’s required
review and documentation efforts
dramatically increased, and because of
the increased workload, the region
office did not have sufficient resources
to manage the workload associated with
the NEPA Assignment Program. The
DOT&PF stated as part of its responses
for this audit that it has adequate
staffing, continually monitors the
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Fmt 4703
Sfmt 4703
number of environmental documents in
development, and discusses regional
workloads during the weekly NEPA
manager’s meetings. Through
interviews, the team learned that if an
individual region experiences an
unusually large workload and reports it
to SEO, projects would be distributed
among NEPA managers. However, based
on interviews conducted for this audit,
workload for some staff remains a
concern.
Observation #4: Government-toGovernment Consultation Protocol. The
DOT&PF has committed to conducting
Tribal consultation in its program
Section 106 PA. The DOT&PF’s EPM
also identifies a process for coordinating
with Tribes that is sensitive to any
request for Government-to-Government
consultation. The DOT&PF leadership
indicated that staff have received
training, and is using monthly Cultural
Resources Team (CRT) meetings to
increase staff understanding of the
Government-to-Government process.
Observation #5: Section 106
Compliance and Effect Determination.
The DOT&PF examined and corrected
the project-specific issues. It also
indicated that it held a Section 106
training for environmental analysts in
June of 2018, created specifically for
Alaska DOT&PF by a consultant with
input from SEO staff. The cross-regional
CRT, which includes the SHPO office
DOT&PF liaison, meets on a monthly
basis to discuss Section 106 procedures
and compliance. The CRT was
recognized by the DOT&PF
Commissioner during the last audit year
for outstanding team performance.
Observation #6: Identify QC staff roles
and responsibilities in the DOT&PF’s
QA/QC Plan. The DOT&PF has defined
the roles of the Project Development
Team members in the EPM manual and
QA/QC Plan (EPM Sections 4.3, 5.4,
11.3, and 11.4) when project
development teams are used.
Observation #7: Consider ways to
accommodate training needs and timely
delivery. The DOT&PF has hired
consultants to develop interactive
online training, and deliver in-person
training to the regional offices. Inperson training was conducted in June,
October, November of 2018, and
February 2019. This training included
Section 106, Section 4(f), and the Alaska
National Interest Lands Conservation
Act. In addition, training is being
offered in multiple formats: Manual
review including the EPM, online
courses, on-the-job training, and
mentoring.
E:\FR\FM\30JNN1.SGM
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Federal Register / Vol. 85, No. 126 / Tuesday, June 30, 2020 / Notices
Finalization of Report
The FHWA received comments on the
draft report from the American Road &
Transportation Builders Association
(ARTBA). The ARTBA’s comments were
supportive of the Surface Transportation
Project Delivery Program and did not
relate specifically to audit 2. The team
has considered these comments in
finalizing this audit report. This notice
makes available the final report of
DOT&PF’s second audit under the
program.
[FR Doc. 2020–14004 Filed 6–29–20; 8:45 am]
BILLING CODE 4910–RY–P
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety
Administration
[Docket No. FMCSA–1999–6480; FMCSA–
2006–24015; FMCSA–2006–24783; FMCSA–
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ACTION: Notice of renewal of
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AGENCY:
FMCSA announces its
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individuals from the vision requirement
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khammond on DSKJM1Z7X2PROD with NOTICES
SUMMARY:
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FMCSA–2012–0159, Docket No.
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FMCSA–2018–0012, or Docket No.
FMCSA–2018–0014 using any of the
following methods:
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Christine A. Hydock, Chief, Medical
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fmcsamedical@dot.gov, FMCSA,
Department of Transportation, 1200
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Monday through Friday, except Federal
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A. Submitting Comments
If you submit a comment, please
include the docket number for this
notice (Docket No. FMCSA–1999–6480;
FMCSA–2006–24015; FMCSA–2006–
24783; FMCSA–2008–0106; FMCSA–
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39265
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are questions regarding your
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To submit your comment online, go to
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]]>Agencies
[Federal Register Volume 85, Number 126 (Tuesday, June 30, 2020)]
[Notices]
[Pages 39260-39265]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-14004]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
[FHWA Docket No. FHWA-2019-0032]
Surface Transportation Project Delivery Program; Alaska
Department of Transportation Second Audit Report
AGENCY: Federal Highway Administration (FHWA), U.S. Department of
Transportation (DOT).
ACTION: Notice.
-----------------------------------------------------------------------
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 makes available the final second
audit report for the Alaska Department of Transportation and Public
Facilities (DOT&PF).
FOR FURTHER INFORMATION CONTACT: Mr. David T. Williams, Office of
Project Development and Environmental Review, (202) 366-4074,
[email protected], or 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 20905. 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 DOT&PF published its application for NEPA assumption on May 1,
2016, and made it available for public comment for 30 days. After
considering public comments, DOT&PF submitted its application to FHWA
on July 12, 2016. The application served as the basis for developing a
memorandum of understanding (MOU) that identified the responsibilities
and obligations that DOT&PF would assume. The FHWA published a notice
of the draft MOU in the Federal Register on August 25, 2017, with a 30-
day comment period to solicit the views of the public and Federal
agencies. After the close of the comment period, FHWA and DOT&PF
considered comments and proceeded to execute the MOU. Effective
November 13, 2017, DOT&PF assumed FHWA's responsibilities under NEPA,
and the responsibilities for NEPA-related Federal environmental laws
described in the MOU.
Section 327(g) of title 23, U.S.C., requires the Secretary of
Transportation to conduct annual audits during each of the first 4
years of State participation. After the fourth year, the Secretary
shall monitor the State's compliance with the written agreement. The
FHWA published a notice in the Federal Register at 85 FR 8089 on
February 12, 2020, soliciting comments for 30 days, pursuant to 23
U.S.C. 327(g). The FHWA received comments on the draft report from the
American Road & Transportation Builders Association (ARTBA). The
ARTBA's comments were supportive of the Surface Transportation Project
Delivery Program and did not relate specifically to the audit. The team
has considered these comments in finalizing this audit report. This
notice makes available the final report of DOT&PF's second audit under
the program.
Authority: Section 1313 of Public Law 112-141; Section 6005 of
Public Law 109-59; 23 U.S.C 327; 23 CFR part 773.
Nicole R. Nason,
Administrator, Federal Highway Administration.
Surface Transportation Project Delivery Program, FHWA Audit of the
Alaska Department of Transportation
April 15-19, 2019
Executive Summary
This report summarizes the results of the Federal Highway
Administration's (FHWA) second audit of the Alaska Department of
Transportation and Public Facilities' (DOT&PF) assumption of FHWA's
project-level National Environmental Policy Act (NEPA) responsibilities
and obligations pursuant to a 23 U.S.C. 327
[[Page 39261]]
Memorandum of Understanding (MOU). The DOT&PF entered the NEPA
Assignment Program \1\ after more than 8 years of experience making
FHWA NEPA Categorical Exclusion (CE) determinations pursuant to 23
U.S.C. 326 (beginning September 22, 2009). Alaska's MOU was signed on
November 3, 2017, and became effective on November 13, 2017. Three
Federal-aid projects were excluded from the MOU, but the environmental
process for these projects has since been completed. Currently, FHWA's
NEPA responsibilities in Alaska include oversight and auditing of the
DOT&PF's execution of the NEPA Assignment Program and certain
activities excluded from the MOU such as projects advanced by direct
recipients other than DOT&PF.
---------------------------------------------------------------------------
\1\ Throughout this report, FHWA uses the term ``NEPA Assignment
Program'' to refer to the program codified at 23 U.S.C. 327 (Surface
Transportation Project Delivery Program).
---------------------------------------------------------------------------
The FHWA audit team began preparing for the site visit in October
2018. This preparation included a review of DOT&PF's NEPA project
files, DOT&PF's response to FHWA's pre-audit information request
(PAIR), and consideration of DOT&PF's self-assessment summary report.
The audit team completed the site visit for the second audit April 15-
19, 2019.
The audit team appreciates DOT&PF's responsiveness to questions on
the status of their corrective actions for the first audit non-
compliance and general observations. This report concludes with a
status update for FHWA's observations from the first audit report.
The audit team finds DOT&PF in substantial compliance with the
terms of the MOU in meeting the responsibilities it has assumed. This
report does not identify any non-compliance observations; it does
identify six general observations as well as several successful
practices.
Background
The NEPA Assignment Program allows a State to assume FHWA's
environmental responsibilities for review, consultation, and compliance
for highway projects. This program is codified at 23 U.S.C. 327. When a
State assumes these Federal responsibilities for NEPA project
decisionmaking, the State becomes solely responsible and solely liable
for carrying out these obligations in lieu of and without further NEPA-
related approval by FHWA.
The FHWA assigned responsibility for making project NEPA approvals
and the responsibility for making other related environmental decisions
for highway projects to DOT&PF on November 3, 2017, which became
effective on November 13, 2017. The MOU specifies those FHWA
responsibilities assigned to DOT&PF. Examples of responsibilities
DOT&PF has assumed in addition to NEPA include Section 7 consultation
under the Endangered Species Act (ESA) and consultation under Section
106 of the National Historic Preservation Act (NHPA).
This is the second of four required annual audits pursuant to 23
U.S.C. 327(g) and Part 11 of the MOU. Audits are the primary mechanism
through which FHWA oversees DOT&PF's compliance with the MOU and the
NEPA Assignment Program requirements. This includes ensuring compliance
with applicable Federal laws and policies, evaluating DOT&PF's progress
toward achieving the performance measures identified in Section 10.2 of
the MOU, 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 included NEPA subject matter experts from FHWA
offices in Juneau, Alaska; Washington, District of Columbia; Atlanta,
Georgia; Sacramento, California; and Lakewood, Colorado.
Scope and Methodology
The audit team examined a sample of DOT&PF's NEPA project files,
DOT&PF responses to the PAIR, and DOT&PF's Self-Assessment Summary
report. The audit team also interviewed DOT&PF staff and reviewed
DOT&PF policies, guidance, and manuals pertaining to NEPA
responsibilities. All reviews focused on objectives related to the six
NEPA Assignment Program elements: Program Management; Documentation and
Records Management; Quality Assurance/Quality Control (QA/QC); Legal
Sufficiency; Training; and Performance Measurement.
Project File Review: To consider DOT&PF staff adherence to program
procedures and Federal requirements, the audit team selected a sample
of individual project files for which the environmental review had been
completed. The audit team did not evaluate DOT&PF's project-specific
decisions, but rather compliance with assumed responsibilities and
adherence to their own processes and procedures for project-level
environmental decision making. The 43 sampled files included
Programmatic CEs (actions approved in the regional offices), CEs and
Environmental Assessments (EAs) (approved in the Statewide
Environmental Office (SEO)), and re-evaluations (approved by the same
office as the original environmental document).
PAIR Review: The audit team reviewed the PAIR, which consisted of
61 questions about specific elements in the MOU that DOT&PF must
implement. These responses were used to develop specific follow-up
questions for the on-site interviews with DOT&PF staff.
DOT&PF Self-Assessment Review: The audit team reviewed DOT&PF's
Self-Assessment summary report and used it to develop specific follow-
up questions for the on-site interviews with DOT&PF staff. The NEPA
Assignment Program MOU Section 8.2.5 requires the DOT&PF to conduct
annual self-assessments of its QA/QC procedures and performance.
Interviews: The audit team conducted 18 on-site interviews and 1
phone interview with DOT&PF staff. Interviewees included staff from
each of DOT&PF's three regional offices and its SEO. The audit team
invited DOT&PF staff, middle management, and executive management to
participate in interviews to ensure they represented a diverse range of
staff expertise, experience, and program responsibility. In addition,
the audit team conducted two phone interviews of attorneys with the
Alaska Department of Law and three phone interviews with staff at the
U.S. Fish and Wildlife Service (USFWS) Field Office in Anchorage and
the Conservation Planning Assistance Branch in Fairbanks.
Policy/Guidance/Manual Review: Throughout the document reviews and
interviews, the audit team verified information on DOT&PF's NEPA
Assignment Program including DOT&PF policies, guidance, manuals, and
reports. This included the Environmental Program Manual (EPM), the NEPA
Assignment QA/QC Plan, the NEPA Assignment Program Training Plan, and
the NEPA Assignment Self-Assessment Summary report.
Overall Audit Opinion
This report identifies six observations and several successful
practices. The audit team finds DOT&PF is substantially in compliance
with the provisions of the MOU, has carried out the environmental
responsibilities it assumed through the NEPA Assignment Program, and is
taking steps to address observations identified in the first audit.
[[Page 39262]]
Non-Compliance Observations
The audit team made no non-compliance observations in the second
audit.
Observations and Successful Practices
This section summarizes the audit team's observations of DOT&PF's
NEPA Assignment Program implementation, and successful practices DOT&PF
may want to continue or expand. The audit team has observations which
DOT&PF may use to improve processes, procedures, or outcomes. The
DOT&PF may have already taken steps to address or improve upon the
audit team's observations, but at the time of the audit they appeared
to be areas where DOT&PF could make improvements. Successful practices
are positive results that FHWA would like to commend DOT&PF on
developing. These may include ideas or concepts that DOT&PF has planned
but not yet implemented. Successful practices and observations are
described under the six MOU topic areas: Program Management,
Documentation and Records Management, QA/QC, Training Program,
Performance Measures, and Legal Sufficiency.
This audit report provides an opportunity for DOT&PF to take
further 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 the third audit. The third audit
report will include a summary discussion that describes progress since
this audit.
Program Management
Program Management includes the overall administration of the NEPA
Assignment Program. The audit team noted the following successful
practices and observations related to Program Management.
Successful Practices
Based on interviews, DOT&PF plans to update the entire EPM on a 2-
year cycle. The SEO indicated that in the interval between EPM updates,
topic-specific memoranda would be developed in collaboration with the
regional DOT&PF offices to address guidance, policy, or procedure
change in advance of the 2020 EPM revision.
The FHWA acknowledges DOT&PF's current efforts to develop guidance
memoranda in the following areas:
Floodplains: The DOT&PF identified the need for additional
floodplain guidance. The audit team observed that the SEO and some
regional staff have varying expectations regarding analysis of
floodplain encroachments and QA/QC requirements. The DOT&PF is
encouraged to revise the EPM to clarify what technical analyses and
reports may be required as part of complete project documentation,
particularly in the context of hydraulic analyses.
Planning and Environment Linkage (PEL): The DOT&PF has
issued a request for proposals for a consultant to develop PEL
guidance. The audit team found PEL studies were evaluated as actions
needing a NEPA review; however PEL studies are not subject to NEPA. The
audit team learned through interviews that DOT&PF has several ongoing
PEL studies, so guidance will be timely.
The audit team, through its interviews, noted successful DOT&PF
collaboration with the USFWS, the National Marine Fisheries Service
(NMFS), and the State Historic Preservation Office (SHPO). The SEO
leadership stated that agencies are engaged to maintain and improve
relationships.
Interviews with USFWS staff confirmed that USFWS has a
good working relationship with DOT&PF. Both DOT&PF regional staff and
USFWS desire to have more regular meetings to further improve
relationships and accelerate project delivery. Examples of discussion
topics include: Developing best management practices, discussing
programmatic approaches, and improving scoping documents.
The DOT&PF Self-Assessment Summary report describes the
SEO coordination with NMFS to clarify procedures for biological
opinions and has issued a guidance memo to DOT&PF regional offices.
The SEO and regional Section 106 subject matter experts
collaborate with SHPO on concerns, challenges, and compliance issues.
Observation #1: Applicability of Existing Interagency Agreements
Section 5.1.3 of the MOU requires the DOT&PF to work with FHWA and
the resource agencies to modify existing interagency agreements within
6 months of the effective date of the MOU. The audit team recognizes
that the four different resource agencies' (U.S. Army Corps of
Engineers, NMFS, USFWS, and U.S. Soil Conservation Service (now Natural
Resources Conservation Service)) Programmatic Agreements (PA) that were
executed in 1985 have not been applicable since the DOT&PF implemented
the CE Assignment Program (23 U.S.C. 326) in 2009. Therefore, none of
these agreements apply to the current NEPA Assignment Program under 23
U.S.C. 327. The DOT&PF staff may find it useful to meet with all its
resource agency partners to clarify their roles under the NEPA
Assignment Program. Also, if DOT&PF chooses to enter into interagency
agreements per Section 5.1.4 of the MOU, DOT&PF may develop provisions
that make the program more efficient and clarify the State's role as
decisionmaker.
Observation #2: DOT&PF Delegation of Authority for NEPA Approvals
Section 3.3.1 of the MOU requires DOT&PF to make NEPA approvals (CE
determinations, findings of no significant impact, or records of
decision). Project file reviews and interviews conducted for this audit
revealed inconsistencies regarding the delegation of NEPA approvals
within DOT&PF. Although interviews with SEO staff indicated SEO has a
written blanket delegation of signature authority for the office,
interviews with DOT&PF regional offices revealed variability in
procedures for Regional Environmental Managers (REMs) to delegate their
approval authority. Some of the project files the team reviewed
contained emails that addressed the delegation of approval authority
for that project while other project files did not. The review team
encourages DOT&PF to review and standardize its procedures for
delegation of authority for NEPA approvals to clarify approval
responsibility and minimize risk of individuals making NEPA approvals
without authorization.
Observation #3: Staff Capacity
Sections 4.2.1. and 4.2.2. of the MOU outline the requirements for
the State's commitment of resources and adequate organizational and
staff capability. The audit team learned through interviews that SEO
and some regional offices have had moderate to high staff turnover
since the MOU took effect. Several of the recent SEO leadership staff
have retired or been promoted. This issue is a recurrence from Audit #1
(see Audit #1, report Observation #3). Under the MOU, DOT&PF must
maintain ``adequate'' organizational and staff capability, including
appropriate environmental, technical, legal, and managerial expertise
to perform its assumed responsibilities under this MOU and applicable
Federal laws. Although any determination of adequacy is a challenge
given the expectation for normal staff turnover, DOT&PF could consider
monitoring the State's requirement under the MOU to maintain
organizational and staff capacity, as well as potential staff adequacy
risks to the program. We encourage DOT&PF leadership to assess
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the adequacy of organizational and staff capacity annually. This
assessment would help the State demonstrate that DOT&PF is actively
evaluating its commitment of resources with respect to this MOU
requirement.
Documentation and Records Management
From March 1, 2018, through October 30, 2018, DOT&PF made 161
project decisions (e.g., Section 4(f) approvals) and NEPA approvals. By
employing both judgmental and random sampling methods, the audit team
reviewed NEPA project documentation for 43 of these decisions/
approvals.
Observation #4: Documentation of Environmental Commitments
Section 5.1.1 of the MOU requires the State to follow Federal laws,
regulations, policy, and procedures to implement the responsibilities
assumed. Project file reviews and interviews conducted for this audit
revealed inconsistencies regarding how DOT&PF documents environmental
commitments and ensures that environmental commitments made during the
NEPA process are carried through the project development process and
into construction. Interviews with DOT&PF regional offices and SEO
contained specific questions about environmental commitments. Reponses
revealed varying regional office staff opinions regarding Environmental
Impact Analyst (Analyst) and REM responsibilities related to
commitments and SEO concern with the transference process from NEPA
through design and into construction. To address an issue with
environmental commitments identified in an earlier program review by
the Alaska Division, DOT&PF developed a short-term corrective action to
prepare written guidance that would be implemented no later than
December 31, 2018. This written guidance has been drafted, but not
implemented as of April 15-19, 2019, the week of the audit site visit.
Quality Assurance/Quality Control
Under the MOU, DOT&PF agreed to carry out regular QA/QC activities
to ensure the assumed responsibilities are conducted in accordance with
applicable law and the MOU. The audit team noted the following
successful practices and observations related to QA/QC.
Successful Practices
Analysts in the DOT&PF south coast region have a role in the QA/QC
process, as they conduct peer reviews of the documentation in their
project files. This encourages consistency in the project review
process among Analysts and functions as a valuable training opportunity
so that all Analysts can recognize errors and omissions.
The REMs and SEO staff stated that collaboration among regional
staff, SEO, and legal staff during development of draft environmental
documents, where it occurred, improved document quality. Further, they
stated this reduced the number of errors found during formal QA/QC and
when reviewing project files during DOT&PF's Self-Assessment.
Once DOT&PF implements its Comprehensive Environmental Data and
Reporting (CEDAR) System, DOT&PF stated that the system should
eliminate inconsistencies in project name, project identifiers and
environmental documentation which DOT&PF also identified as a potential
issue in its Self-Assessment Summary report. By transferring project
information from another State system, CEDAR should provide a system
control that enhances data integrity.
Observation #5: Inconsistency in Project Termini and Statewide
Transportation Improvement Program (STIP)
Section 3.3.1 of the MOU requires DOT&PF, at the time of NEPA
approval (CE determination, finding of no significant impact, or record
of decision), to ensure that the project's design concept, scope, and
funding is consistent with current planning documents. The audit team's
document review of a sample of projects found one project file with an
inconsistency between project termini shown in a project plan and that
described in the STIP. The DOT&PF's Self-Assessment found similar
inconsistencies. This was observed both for programmatic CEs (approved
at the region level) and non-programmatic CEs (approved at the SEO
level) that are required to undergo a QC review by REMs in accordance
with Section 3.3.2 of the EPM. To help eliminate these types of
inconsistencies, DOT&PF may want to consider providing additional tools
to REMs for use when approving environmental documents, such as a
checklist of items to be verified.
Training
Under Part 12 of the MOU, DOT&PF committed to implementing training
necessary to meet its environmental obligations assumed under the NEPA
Assignment Program. The DOT&PF also committed to assessing its need for
training, developing a training plan, and updating the training plan on
an annual basis in consultation with FHWA and other Federal agencies as
appropriate.
Successful Practices
The SEO worked with a consultant to customize an advanced NEPA
training based on the Alaska NEPA Assignment Program to make it
specific for issues typically encountered in Alaska.
The DOT&PF south coast region uses a memorandum to serve as a part
of all new employee's orientation and as a precursor to more formal
training. The REM issues it to all new Analysts. This memorandum
outlines to whom the new employees should talk in their first 2 weeks
to help firmly establish relationships and gain an overview of
environmental program components.
All DOT&PF regional offices implement individual coaching and on-
the-job training practices, which are important mechanisms by which
Analysts, especially new Analysts, acquire some of the knowledge and
skills necessary to perform their job functions.
Observations
Observation #6: Training Plan Update
Section 12.2 of the MOU commits DOT&PF and FHWA to update the
DOT&PF training plan annually in consultation with other Federal
agencies as appropriate. The DOT&PF's Training Plan had not yet been
updated as of the date of the site visit. The audit team encourages the
State to re-evaluate its entire plan for training in light of its
budget limitations, so that there is a realistic means of delivering
necessary training, especially for new staff. The State may consider
further leveraging its Web-based training capabilities to meet training
needs.
Performance Measures
The MOU's inclusion of performance measures for the DOT&PF to
develop and track progress fits well within FHWA's overall approach to
have programs define specific goals that could be measured by existing
data or by combinations or indexes of existing data. For example, in
recent years, FHWA has promulgated performance measure requirements in
support of National Performance Management for freight programs
(January 18, 2017), pavement and bridge condition (January 18, 2018),
as well as for FHWA's Offices of Safety (March 15, 2016), and
Operations (May 2012). In each of these cases, as well as for the FHWA
Strategic Plan, there is a requirement for the development and
definition of objectives/goals and indicators/measures of overall
program performance.
According to Part 10 of the MOU, DOT&PF will report its progress
toward
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meeting its performance measures in the self-assessment summary that is
considered by FHWA's audit team. The January 2019 DOT&PF Self-
Assessment Summary report identified 13 performance measures for which
2 could not be reported due to lack of a baseline, and 4 measures were
based on one approved EA project. Therefore, almost half of the
performance measures could not be reported because either no baseline
for comparison was developed or the measure was constrained to apply
only to EA or Environmental Impact Statement (EIS) projects, even
though more than 95 percent of NEPA approvals were CEs.
Legal Sufficiency
During the audit period, one attorney from the Alaska Department of
Law (DOL) Transportation Section continued to be assigned to the NEPA
Assignment Program. The assigned attorney has significant experience
with Federal-aid highway projects and the Federal environmental
process. The attorney works directly with DOT&PF staff on project
environmental documents. Based on the interviews, the review process
followed the standard set forth in the EPM, with the attorney involved
early in project development, normally reviewing NEPA documents prior
to their circulation to resource agencies for comment. During the audit
period, the attorney reviewed three EAs and multiple re-evaluations of
an older EIS. The attorney did not issue a formal finding of legal
sufficiency during the audit period, as he did not review a Final EIS
or Section 4(f) Evaluation (per 23 CFR 771.125[b] or 774.7[d]) during
that time.
The DOL management stated that while only one attorney is currently
assigned to the program, should workload increase significantly, DOL
would assign another attorney to NEPA work.
Status of Observations From Audit #1 (April 2018)
This section describes the actions DOT&PF has taken (or is taking)
in response to audit observations, including non-compliance
observations made during the first audit. Any non-compliance
observations require DOT&PF to take corrective action.
Non-Compliance Observation #1: Ensure an Opportunity for a Public
Hearing is Provided When Required. The DOT&PF responded that FHWA's
non-compliance observation was made prior to the completion of the
DOT&PF's EPM (February 2018). Based on the current edition of the EPM,
the requirements for public hearing based on project type are
adequately documented and no additional instances of non-compliance
were found by the audit team during the second audit. The FHWA has
found the corrective action to be satisfactory in addressing the non-
compliance observation.
Observation #1: Programmatic Section 106 compliance and Section
4(f) compliance. The DOT&PF recognized possible risk in applying its
Section 106 programmatic agreement (PA) to projects that require
integration of the Section 106 process with Section 4(f) requirements.
To address this risk, SEO consulted with SHPO and created a letter of
agreement to provide DOT&PF's notification to SHPO of the intent to
make a de minimis determination on a project processed under the
Section 106 PA as a streamlined review/programmatic allowance. In this
audit, the team did not identify instances where the streamlined
Section 106 form had been used to support a Section 4(f) use.
Observation #2: Lack of a Process to Implement Planning Consistency
at Time of a NEPA Decision. In response to this observation, DOT&PF
stated that the project manager is responsible to review and document
the availability of funding per Section 420.1.1 of the Preconstruction
Manual and that this information is communicated to environmental staff
through Section 1.1.1 of the EPM. The DOT&PF also referenced Section
1.3.1 of the EPM in supporting the planning consistency requirements.
However, the audit team found an inconsistency regarding a project's
termini as shown in a project plan and how that project was described
in the STIP. This was identified as an observation in this audit
(Observation #5). The audit team recognizes that DOT&PF's manuals offer
general guidance, but may want to consider providing additional tools
to REMs for use when approving environmental documents, such as a
checklist of items to be verified to ensure consistency with
transportation plans.
Observation #3: Staff Capacity, Workload, and Turnover. During
Audit #1, several DOT&PF staff explained through interviews, that since
the State's entry into the full NEPA Assignment Program, staff's
required review and documentation efforts dramatically increased, and
because of the increased workload, the region office did not have
sufficient resources to manage the workload associated with the NEPA
Assignment Program. The DOT&PF stated as part of its responses for this
audit that it has adequate staffing, continually monitors the number of
environmental documents in development, and discusses regional
workloads during the weekly NEPA manager's meetings. Through
interviews, the team learned that if an individual region experiences
an unusually large workload and reports it to SEO, projects would be
distributed among NEPA managers. However, based on interviews conducted
for this audit, workload for some staff remains a concern.
Observation #4: Government-to-Government Consultation Protocol. The
DOT&PF has committed to conducting Tribal consultation in its program
Section 106 PA. The DOT&PF's EPM also identifies a process for
coordinating with Tribes that is sensitive to any request for
Government-to-Government consultation. The DOT&PF leadership indicated
that staff have received training, and is using monthly Cultural
Resources Team (CRT) meetings to increase staff understanding of the
Government-to-Government process.
Observation #5: Section 106 Compliance and Effect Determination.
The DOT&PF examined and corrected the project-specific issues. It also
indicated that it held a Section 106 training for environmental
analysts in June of 2018, created specifically for Alaska DOT&PF by a
consultant with input from SEO staff. The cross-regional CRT, which
includes the SHPO office DOT&PF liaison, meets on a monthly basis to
discuss Section 106 procedures and compliance. The CRT was recognized
by the DOT&PF Commissioner during the last audit year for outstanding
team performance.
Observation #6: Identify QC staff roles and responsibilities in the
DOT&PF's QA/QC Plan. The DOT&PF has defined the roles of the Project
Development Team members in the EPM manual and QA/QC Plan (EPM Sections
4.3, 5.4, 11.3, and 11.4) when project development teams are used.
Observation #7: Consider ways to accommodate training needs and
timely delivery. The DOT&PF has hired consultants to develop
interactive online training, and deliver in-person training to the
regional offices. In-person training was conducted in June, October,
November of 2018, and February 2019. This training included Section
106, Section 4(f), and the Alaska National Interest Lands Conservation
Act. In addition, training is being offered in multiple formats: Manual
review including the EPM, online courses, on-the-job training, and
mentoring.
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Finalization of Report
The FHWA received comments on the draft report from the American
Road & Transportation Builders Association (ARTBA). The ARTBA's
comments were supportive of the Surface Transportation Project Delivery
Program and did not relate specifically to audit 2. The team has
considered these comments in finalizing this audit report. This notice
makes available the final report of DOT&PF's second audit under the
program.
[FR Doc. 2020-14004 Filed 6-29-20; 8:45 am]
BILLING CODE 4910-RY-P
