Surface Transportation Project Delivery Program; Alaska Department of Transportation Second Audit Report, 39260-39265 [2020-14004]

Download as PDF 39260 Federal Register / Vol. 85, No. 126 / Tuesday, June 30, 2020 / Notices section, the Committee may consider, among other things, whether: a. The petition clearly identifies the petitioner, and is dated. b. The petition and accompanying information enable a determination of the scope and nature of the alleged noncompliance and permit an appropriate review. c. Relief has been sought under the domestic laws of the other Party. d. The matter or a related matter has been addressed by, or is pending before, any international body. 8. In making any determination identified in this section, the Committee may, among other things: a. Consider views expressed by the public. b. Consult with: i. Officials of the United States government. ii. Officials of any State or local government. iii. Officials of any foreign government. iv. The designated contact point of the relevant Party. v. Labor organizations. vi. Non-government representatives. vii. Advisory committees. viii. The petitioner. 9. The Committee may keep the petitioner apprised of the status of a review, including of a review determination. khammond on DSKJM1Z7X2PROD with NOTICES Section E. Confidentiality 1. Information provided by a person or another Party to the Committee in confidence shall be treated as exempt from public inspection if the information meets the requirements of 5 U.S.C. 552(b) of the Freedom of Information Act or if otherwise permitted by law. 2. The Committee recommends that each person or Party requesting such treatment clearly mark ‘‘provided in confidence’’ on each page or portion of a page so provided and furnish an explanation as to the need for exemption from public inspection. 3. The OTLA and the Committee are sensitive to the confidentiality needs of a person requesting confidential treatment of information and will make every effort to protect a natural person’s identity pursuant to the law. Lewis Karesh, Assistant United States Trade Representative for Labor, Office of the United States Trade Representative. [FR Doc. 2020–14086 Filed 6–29–20; 8:45 am] BILLING CODE 3290–F0–P VerDate Sep<11>2014 18:18 Jun 29, 2020 Jkt 250001 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 PO 00000 Frm 00101 Fmt 4703 Sfmt 4703 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 E:\FR\FM\30JNN1.SGM 30JNN1 Federal Register / Vol. 85, No. 126 / Tuesday, June 30, 2020 / Notices 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. khammond on DSKJM1Z7X2PROD with NOTICES 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). VerDate Sep<11>2014 18:18 Jun 29, 2020 Jkt 250001 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) PO 00000 Frm 00102 Fmt 4703 Sfmt 4703 39261 (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. E:\FR\FM\30JNN1.SGM 30JNN1 39262 Federal Register / Vol. 85, No. 126 / Tuesday, June 30, 2020 / Notices 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. khammond on DSKJM1Z7X2PROD with NOTICES 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 VerDate Sep<11>2014 18:18 Jun 29, 2020 Jkt 250001 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 PO 00000 Frm 00103 Fmt 4703 Sfmt 4703 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 E:\FR\FM\30JNN1.SGM 30JNN1 Federal Register / Vol. 85, No. 126 / Tuesday, June 30, 2020 / Notices 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. khammond on DSKJM1Z7X2PROD with NOTICES 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. VerDate Sep<11>2014 18:18 Jun 29, 2020 Jkt 250001 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. PO 00000 Frm 00104 Fmt 4703 Sfmt 4703 39263 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 E:\FR\FM\30JNN1.SGM 30JNN1 39264 Federal Register / Vol. 85, No. 126 / Tuesday, June 30, 2020 / Notices 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. khammond on DSKJM1Z7X2PROD with NOTICES 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 VerDate Sep<11>2014 18:18 Jun 29, 2020 Jkt 250001 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 PO 00000 Frm 00105 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 30JNN1 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– 2008–0106; FMCSA–2010–0082; FMCSA– 2010–0114; FMCSA–2011–0379; FMCSA– 2012–0104; FMCSA–2012–0159; FMCSA– 2014–0002; FMCSA–2014–0003; FMCSA– 2014–0005; FMCSA–2014–0007; FMCSA– 2015–0348; FMCSA–2016–0027; FMCSA– 2016–0028; FMCSA–2016–0029; FMCSA– 2016–0030; FMCSA–2018–0012; FMCSA– 2018–0014] Qualification of Drivers; Exemption Applications; Vision Federal Motor Carrier Safety Administration (FMCSA), Transportation (DOT). ACTION: Notice of renewal of exemptions; request for comments. AGENCY: FMCSA announces its decision to renew exemptions for 32 individuals from the vision requirement in the Federal Motor Carrier Safety Regulations (FMCSRs) for interstate commercial motor vehicle (CMV) drivers. The exemptions enable these individuals to continue to operate CMVs in interstate commerce without meeting the vision requirements in one eye. DATES: Each group of renewed exemptions were applicable on the dates stated in the discussions below and will expire on the dates stated in the discussions below. Comments must be received on or before July 30, 2020. ADDRESSES: You may submit comments identified by the Federal Docket Management System (FDMS) Docket No. FMCSA–1999–6480, Docket No. FMCSA–2006–24015, Docket No. FMCSA–2006–24783, Docket No. FMCSA–2008–0106, Docket No. FMCSA–2010–0082, Docket No. FMCSA–2010–0114, Docket No. FMCSA–2011–0379, Docket No. FMCSA–2012–0104, Docket No. khammond on DSKJM1Z7X2PROD with NOTICES SUMMARY: VerDate Sep<11>2014 18:18 Jun 29, 2020 Jkt 250001 FMCSA–2012–0159, Docket No. FMCSA–2014–0002, Docket No. FMCSA–2014–0003, Docket No. FMCSA–2014–0005, Docket No. FMCSA–2014–0007, Docket No. FMCSA–2015–0348, Docket No. FMCSA–2016–0027, Docket No. FMCSA–2016–0028, Docket No. FMCSA–2016–0029, Docket No. FMCSA–2016–0030, Docket No. FMCSA–2018–0012, or Docket No. FMCSA–2018–0014 using any of the following methods: • Federal eRulemaking Portal: Go to http://;www.regulations.gov. Follow the online instructions for submitting comments. • Mail: Docket Operations; U.S. Department of Transportation, 1200 New Jersey Avenue SE, West Building Ground Floor, Room W12–140, Washington, DC 20590–0001. • Hand Delivery: West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE, Washington, DC, between 9 a.m. and 5 p.m., ET, Monday through Friday, except Federal Holidays. • Fax: (202) 493–2251. To avoid duplication, please use only one of these four methods. See the ‘‘Public Participation’’ portion of the SUPPLEMENTARY INFORMATION section for instructions on submitting comments FOR FURTHER INFORMATION CONTACT: Ms. Christine A. Hydock, Chief, Medical Programs Division, (202) 366–4001, fmcsamedical@dot.gov, FMCSA, Department of Transportation, 1200 New Jersey Avenue SE, Room W64–224, Washington, DC 20590–0001. Office hours are from 8:30 a.m. to 5 p.m., ET, Monday through Friday, except Federal holidays. If you have questions regarding viewing or submitting material to the docket, contact Docket Operations, (202) 366–9826. SUPPLEMENTARY INFORMATION: I. Public Participation 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– 2010–0082; FMCSA–2010–0114; FMCSA–2011–0379; FMCSA–2012– 0104; FMCSA–2012–0159; FMCSA– 2014–0002; FMCSA–2014–0003; FMCSA–2014–0005; FMCSA–2014– 0007; FMCSA–2015–0348; FMCSA– 2016–0027; FMCSA–2016–0028; FMCSA–2016–0029; FMCSA–2016– 0030; FMCSA–2018–0012; FMCSA– 2018–0014), indicate the specific section of this document to which each comment applies, and provide a reason PO 00000 Frm 00106 Fmt 4703 Sfmt 4703 39265 for each suggestion or recommendation. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so that FMCSA can contact you if there are questions regarding your submission. To submit your comment online, go to http://www.regulations.gov, put the docket number, FMCSA–1999–6480; FMCSA–2006–24015; FMCSA–2006– 24783; FMCSA–2008–0106; FMCSA– 2010–0082; FMCSA–2010–0114; FMCSA–2011–0379; FMCSA–2012– 0104; FMCSA–2012–0159; FMCSA– 2014–0002; FMCSA–2014–0003; FMCSA–2014–0005; FMCSA–2014– 0007; FMCSA–2015–0348; FMCSA– 2016–0027; FMCSA–2016–0028; FMCSA–2016–0029; FMCSA–2016– 0030; FMCSA–2018–0012; FMCSA– 2018–0014, in the keyword box, and click ‘‘Search.’’ When the new screen appears, click on the ‘‘Comment Now!’’ button and type your comment into the text box on the following screen. Choose whether you are submitting your comment as an individual or on behalf of a third party and then submit. 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Insert the docket number, FMCSA–1999–6480; FMCSA–2006–24015; FMCSA–2006– 24783; FMCSA–2008–0106; FMCSA– 2010–0082; FMCSA–2010–0114; FMCSA–2011–0379; FMCSA–2012– 0104; FMCSA–2012–0159; FMCSA– 2014–0002; FMCSA–2014–0003; FMCSA–2014–0005; FMCSA–2014– 0007; FMCSA–2015–0348; FMCSA– 2016–0027; FMCSA–2016–0028; FMCSA–2016–0029; FMCSA–2016– 0030; FMCSA–2018–0012; FMCSA– 2018–0014, in the keyword box, and click ‘‘Search.’’ Next, click the ‘‘Open Docket Folder’’ button and choose the document to review. If you do not have access to the internet, you may view the docket online by visiting the Docket E:\FR\FM\30JNN1.SGM 30JNN1

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]


=======================================================================
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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

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

ACTION: Notice.

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SUMMARY: The Moving Ahead for Progress in the 21st Century Act (MAP-21) 
established the Surface Transportation Project Delivery Program that 
allows a State to assume FHWA's environmental responsibilities for 
environmental review, consultation, and compliance under the National 
Environmental Policy Act (NEPA) for Federal highway projects. When a 
State assumes these Federal responsibilities, the State becomes solely 
responsible and liable for 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

[[Page 39263]]

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

[[Page 39264]]

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.

[[Page 39265]]

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