Surface Transportation Project Delivery Program; Alaska Department of Transportation Audit Report |
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Brandye L. Hendrickson
Federal Highway Administration
5 September 2018
[Federal Register Volume 83, Number 172 (Wednesday, September 5, 2018)]
[Notices]
[Pages 45181-45186]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-19184]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
[FHWA Docket No. FHWA-2018-0040]
Surface Transportation Project Delivery Program; Alaska
Department of Transportation Audit Report
AGENCY: Federal Highway Administration (FHWA), U.S. Department of
Transportation (DOT).
ACTION: Notice; Request for comment.
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SUMMARY: The Moving Ahead for Progress in the 21st Century Act (MAP-21)
established the Surface Transportation Project Delivery Program that
allows a State to assume FHWA's environmental responsibilities for
environmental review, consultation, and compliance under the National
Environmental Policy Act (NEPA) for Federal highway projects. When a
State assumes these Federal responsibilities, the State becomes solely
responsible and liable for the responsibilities it has assumed, in lieu
of FHWA. This program mandates annual audits during each of the first 4
years to ensure the State's compliance with program requirements. This
notice announces and solicits comments on the first audit report for
the Alaska Department of Transportation and Public Facilities (DOT&PF).
DATES: Comments must be received on or before October 5, 2018.
ADDRESSES: Mail or hand deliver comments to Docket Management Facility:
U.S. Department of Transportation, 1200 New Jersey Avenue SE, Room W12-
140, Washington, DC 20590. You may also submit comments electronically
at www.regulations.gov. All comments should include the docket number
that appears in the heading of this document. All comments received
will be available for examination and copying at the above address from
9 a.m. to 5 p.m., e.t., Monday through Friday, except Federal holidays.
Those desiring notification of receipt of
[[Page 45182]]
comments must include a self-addressed, stamped postcard or you may
print the acknowledgment page that appears after submitting comments
electronically. Anyone can search the electronic form of all comments
in any of our dockets by the name of the individual submitting the
comment (or signing the comment, if submitted on behalf of an
association, business, or labor union). The DOT posts these comments,
without edits, including any personal information the commenter
provides, to www.regulations.gov, as described in the system of records
notice (DOT/ALL-14 FDMS), which can be reviewed at www.dot.gov/privacy.
FOR FURTHER INFORMATION CONTACT: Mr. David T. Williams, Office of
Project Development and Environmental Review, (202) 366-4074,
David.Williams@dot.gov, or Mr. Jomar Maldonado, Office of the Chief
Counsel, (202) 366-1373, Jomar.Maldonado@dot.gov, Federal Highway
Administration, Department of Transportation, 1200 New Jersey Avenue
SE, Washington, DC 20590. Office hours are from 8:00 a.m. to 4:30 p.m.,
e.t., Monday through Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION:
Electronic Access
An electronic copy of this notice may be downloaded from the
specific docket page at www.regulations.gov.
Background
The Surface Transportation Project Delivery Program, codified at 23
United States Code (U.S.C.) 327, commonly known as the NEPA Assignment
Program, allows a State to assume FHWA's environmental responsibilities
for review, consultation, and compliance for Federal highway projects.
When a State assumes these Federal responsibilities, the State becomes
solely liable for carrying out the responsibilities, in lieu of the
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 identifies the responsibilities
and obligations that the DOT&PF would assume. The FHWA published a
notice of the draft MOU in the Federal Register on August 25, 2017,
with a 30-day comment period to solicit the views of the public and
Federal Agencies. After the end of the comment period, FHWA and DOT&PF
considered comments and proceeded to execute the MOU. Effective
November 13, 2017, DOT&PF assumed FHWA's responsibilities under NEPA,
and the responsibilities for NEPA-related Federal environmental laws
described in the MOU.
Section 327(g) of Title 23, U.S.C., requires the Secretary to
conduct annual audits during each of the first 4 years of State
participation. After the fourth year, the Secretary shall monitor the
State's compliance with the written agreement. The results of each
audit must be made available for public comment. This notice announces
the availability of the first audit report for DOT&PF and solicits
public comment on same.
Authority: Section 1313 of Public Law 112-141; Section 6005 of
Public Law 109-59; 23 U.S.C. 327; 23 CFR 773.
Issued on: August 28, 2018.
Brandye L. Hendrickson,
Deputy Administrator, Federal Highway Administration.
Draft FHWA Audit of the Alaska Department of Transportation
April 16-20, 2018
The Audit Team finds Alaska Department of Transportation and Public
Facilities (DOT&PF) is carrying out the National Environmental Policy
Act (NEPA) Assignment Program responsibilities (assumed November 2017)
and is compliant with the provisions of the NEPA Assignment Program
Memorandum of Understanding (MOU). The Alaska DOT&PF has established
written internal policies and procedures for the assumed Federal
responsibilities. Following 5 months after execution of the MOU, the
Audit Team identified one non-compliance observation, seven general
observations, and six successful practices. Overall, DOT&PF has carried
out the environmental responsibilities it assumed through the MOU and
the application for the NEPA Assignment Program.
Executive Summary
This report summarizes the results of the Federal Highway
Administration's (FHWA) first audit of the Alaska DOT&PF NEPA review
responsibilities and obligations that FHWA has assigned and DOT&PF has
assumed pursuant to 23 United States Code (U.S.C.) 327. Throughout this
report, FHWA uses the term ``NEPA Assignment Program'' to refer to the
program codified at 23 U.S.C. 327. Under the authority of 23 U.S.C.
327, DOT&PF and FHWA signed a MOU on November 3, 2017, to memorialize
DOT&PF's NEPA responsibilities and liabilities for Federal-aid highway
projects and certain other FHWA approvals for transportation projects
in Alaska. Except for three projects, which FHWA retained, FHWA's only
NEPA responsibilities in Alaska are oversight and review of how DOT&PF
executes its NEPA Assignment Program obligations. The MOU covers
environmental review responsibilities for projects that require the
preparation of environmental assessments (EAs), environmental impact
statements (EIS), and categorical exclusions (CE).
As part of its review responsibilities under 23 U.S.C. 327, FHWA
formed a team in October 2017 to plan and conduct an audit of NEPA
responsibilities DOT&PF assumed. Prior to the on-site visit, the Audit
Team reviewed DOT&PF's NEPA project documentation, DOT&PF's response to
FHWA's pre-audit information request (PAIR), and DOT&PF's self-
assessment of its NEPA Program. The Audit Team reviewed additional
documents and conducted interviews with DOT&PF staff in Alaska on April
16-20, 2018.
The DOT&PF entered into the NEPA Assignment Program after more than
8 years of experience making FHWA NEPA CE determinations pursuant to 23
U.S.C. 326 (beginning September 22, 2009). The DOT&PF's environmental
review procedures are compliant for CEs, and DOT&PF is implementing
procedures and processes for CEs, EAs, and EISs as part of its new
responsibilities under the NEPA Assignment Program. Overall, the Audit
Team found that DOT&PF is successfully adding CE, EA, and EIS project
review responsibilities to an already successful CE review program. The
Audit Team identified one non-compliance observation, seven general
observations, as well as several successful practices. The Audit Team
finds DOT&PF is carrying out the responsibilities it has assumed and is
in compliance with the provisions of the MOU.
Background
The NEPA Assignment Program allows a State to assume FHWA's
environmental responsibilities for review, consultation, and compliance
for Federal-aid highway projects. Under 23 U.S.C. 327, a State that
assumes these Federal responsibilities becomes solely responsible and
solely liable for carrying them out. Effective November 13, 2017,
DOT&PF assumed FHWA's responsibilities under NEPA and other related
environmental laws. Examples of responsibilities DOT&PF has assumed in
addition to NEPA include Section 7
[[Page 45183]]
consultation under the Endangered Species Act (ESA) and consultation
under Section 106 of the National Historic Preservation Act (NHPA).
Following this first audit, FHWA will conduct three more annual
audits to satisfy provisions of 23 U.S.C. 327(g) and Section 11 of the
MOU. Audits are the primary mechanism through which FHWA may oversee
DOT&PF's compliance with the MOU and the NEPA Assignment Program
requirements. This includes ensuring compliance with applicable Federal
laws and policies, evaluating DOT&PF's progress toward achieving the
performance measures identified in MOU Section 10.2, and collecting
information needed for the Secretary's annual report to Congress. The
FHWA must present the results of each audit in a report and make it
available for public comment in the Federal Register.
The Audit Team consisted of NEPA subject matter experts from the
FHWA Alaska Division, as well as from FHWA offices in Washington,
District of Columbia; Atlanta, Georgia; Sacramento, California; and
Lakewood, Colorado. These experts received training on how to evaluate
implementation of the NEPA Assignment Program. In addition, the FHWA
Alaska Division designated their Environmental Program Manager to serve
as a NEPA Assignment Program liaison to DOT&PF.
Scope and Methodology
The Audit Team conducted an examination of DOT&PF's NEPA project
files, DOT&PF responses to the PAIR, and DOT&PF's self-assessment. The
audit also included interviews with staff and reviews of DOT&PF
policies, guidance, and manuals pertaining to NEPA responsibilities.
All reviews focused on objectives related to the six NEPA Assignment
Program elements: program management; documentation and records
management; quality assurance/quality control (QA/QC); legal
sufficiency; training; and performance measurement.
The focus of the audit was on DOT&PF's individual project
compliance and adherence to program practices and procedures.
Therefore, while the Audit Team reviewed project documentation to
evaluate DOT&PF's NEPA process and procedures, the team did not
evaluate DOT&PF's project-specific decisions to determine if they were,
in FHWA's opinion, correct or not. The Audit Team reviewed NEPA
documents from 41 projects including Programmatic CEs, CEs, EAs and Re-
evaluations, a representative sample of all NEPA documents in process
or initiated after the MOU's effective date. The Audit Team also
interviewed environmental staff in all three DOT&PF regions as well as
their headquarters office.
The PAIR consisted of 66 questions about specific elements in the
MOU. The Audit Team appreciates the efforts of DOT&PF staff to meet the
review schedule in supplying their response. These responses were used
to develop specific follow-up questions for the on-site interviews with
DOT&PF staff.
The Audit Team conducted 22 on-site and 6 phone interviews.
Interviewees included staff from each of DOT&PF's three regional
offices and DOT&PF headquarters. The Audit Team invited DOT&PF staff,
middle management, and executive management to participate in
interviews to ensure the interviews represented a diverse range of
staff expertise, experience, and program responsibility.
Throughout the document reviews and interviews, the Audit Team
verified information on the DOT&PF NEPA Assignment Program including
DOT&PF policies, guidance, manuals, and reports. This included the NEPA
QA/QC Plan, the NEPA Assignment Program Training Plan, and the NEPA
Assignment Self-Assessment Report.
The Audit Team utilized information obtained during interviews and
project file documentation reviews to consider the State's
implementation of the assignment program through DOT&PF environmental
manuals, procedures, and policy. This audit is a compliance review of
DOT&PF's adherence to their own documented procedures in compliance
with the terms of the MOU. The team documented observations under the
six NEPA Assignment Program topic areas. Below are the audit results.
Overall Audit Opinion
The Audit Team acknowledges DOT&PF's effort to establish written
internal policies and procedures for the new responsibilities they have
assumed. This report identifies one non-compliant observation that
DOT&PF will need to address through corrective action. These non-
compliance observations come from a review of DOT&PF procedures,
project file documentation, and interview information. This report also
identifies several notable observations and successful practices that
we recommend be expanded. Overall, DOT&PF has carried out the
environmental responsibilities it assumed through the MOU and the
application for the NEPA Assignment Program, and as such the Audit Team
finds that DOT&PF is substantially compliant with the provisions of the
MOU.
Non-Compliance Observations
Non-compliance observations are instances where the team found
DOT&PF was out of compliance or deficient in proper implementation of a
Federal regulation, statute, guidance, policy, the terms of the MOU, or
DOT&PF's own procedures for compliance with the NEPA process. Such
observations may also include instances where DOT&PF has failed to
maintain technical competency, adequate personnel, and/or financial
resources to carry out the assumed responsibilities. Other non-
compliance observations could suggest a persistent failure to
adequately consult, coordinate, or consider the concerns of other
Federal, State, Tribal, or local agencies with oversight, consultation,
or coordination responsibilities. The FHWA expects DOT&PF to develop
and implement corrective actions to address all non-compliance
observations. The FHWA will conduct follow up reviews of non-compliance
observations in Audit #2 from this review.
Observations and Successful Practices
This section summarizes the Audit Team's observations of DOT&PF's
NEPA Assignment Program implementation, including successful practices
DOT&PF may want to continue or expand. Successful practices are
positive results that FHWA would like to commend DOT&PF on developing.
These may include ideas or concepts that DOT&PF has planned but not yet
implemented. Observations are items the Audit Team would like to draw
DOT&PF's attention to, which may benefit from revisions to improve
processes, procedures, or outcomes. The DOT&PF may have already taken
steps to address or improve upon the Audit Team's observations, but at
the time of the audit they appeared to be areas where DOT&PF could make
improvements. This report addresses all six MOU topic areas as separate
discussions. Under each area, this report discusses successful
practices followed by observations.
This audit report provides an opportunity for DOT&PF to begin
implementing actions to improve their program. The FHWA will consider
the status of areas identified for potential improvement in this
audit's observations as part of the scope of Audit #2. The second Audit
Report will include a summary discussion that describes progress since
the last audit.
[[Page 45184]]
Program Management
The review team acknowledges the DOT&PF's efforts to accommodate
their environmental program to the 23 U.S.C. 327 responsibilities they
have assumed. These efforts include updating their Environmental
Procedures Manual, developing and implementing an expanded QA/QC Plan,
establishing an Environmental Program Training Plan, and implementing a
self-assessment process identifying deficiencies that were described
and addressed in a report.
Successful Practices
The Audit Team found that DOT&PF has, overall, appropriately
implemented its project-level review and compliance responsibility for
CEs, EAs, and EISs. The DOT&PF has established a vision and direction
for incorporating the NEPA Assignment Program into its overall project
development process. This was clear in the DOT&PF's responses to FHWA's
PAIR and in interviews with staff in the regions and at DOT&PF's
headquarters office, commonly known as the Statewide Environmental
Office (SEO).
The DOT&PF increased environmental staff in the SEO to support the
new responsibilities under the NEPA Assignment Program. Staff at SEO
are responsible for the review of some projects classified as CEs and
all projects classified as EAs and EISs. Regional environmental staff
coordinate their NEPA work through Regional Environmental Managers and
NEPA Program Managers at SEO. Some staff responsibilities have changed
under the NEPA Assignment Program, but positions have essentially
remained unchanged. Following assumption of NEPA responsibilities,
DOT&PF hired a statewide NEPA Assignment Program Manager who is
responsible for overseeing DOT&PF's policies, manuals, guidance, and
training under the NEPA Assignment Program.
The Audit Team would also like to recognize DOT&PF efforts to bring
a lawyer into the early stages of project development to ensure a
legally defensible document.
Non-Compliance Observation #1: Opportunity of a Public Hearing
Section 7.2.1 of the MOU requires the DOT&PF to develop procedures
to implement the responsibilities assumed. This review identified one
example of deficient adherence to these State procedures. This Audit
Team identified one project file where DOT&PF did not offer the
opportunity for a public hearing for the release of the Draft EA
consistent with its own public involvement procedures in the January
2005 Preconstruction Manual Section 520.4.1 or the February 2018
Environmental Procedures Manual Section 4.4.2. The Audit Team confirmed
with SEO that although public meetings were held, no opportunity for a
public hearing was provided.
Observation #1: Programmatic Section 106 Compliance and Section 4(f)
Compliance
The DOT&PF's November 2017 Section 106 Programmatic Agreement (PA)
established an alternate procedure for Section 106 compliance in Alaska
which allows the use of a streamlined process. The Audit Team
identified a risk to DOT&PF in the application of their Section 106 PA
to projects that require integrating the Section 106 process results to
comply with the requirements of Section 4(f).
a. The PA notes that the streamlined process is applicable to
projects with low potential to affect historic properties. The DOT&PF
staff characterized how they apply the streamlined Section 106 process
to individual projects as ones that result in little or no potential to
affect historic properties. The DOT&PF project documentation for the
streamlined Section 106 compliance is a form that does not identify
either a project effect or the effect to a specific historic property.
b. Because the use of the streamlined form does not identify a
Section 106 effect for any individual historic property, the DOT&PF
documentation cannot support any required Section 4(f) de minimis
impact determinations. (see 23 CFR 774.5(b)(1))
Observation #2: Lack of a process to implement planning consistency at
time of a NEPA decision
Section 3.3.1 of the MOU requires DOT&PF to, at the time they make
a NEPA approval (CE determination, finding of no significant impact, or
record of decision) check to ensure that the project's design concept,
scope, and funding is consistent with current planning documents.
Reviews of project documents provided no evidence that DOT&PF staff had
reviewed planning documents for availability of funding. Through
interviews it was clear that their understanding of this requirement
varied. Through reviews of DOT&PF manuals, the Audit Team could not
find a procedure for staff to follow so that at the time staff makes a
NEPA approval, they are also checking (and documenting) that the
project's design concept, scope, and funding is consistent with
planning documents.
Observation #3: Staff Capacity
Sections 4.2.1 and 4.2.2 discuss the State's commitment of
resources and adequate organizational and staff capability. Several
DOT&PF staff explained through interviews, that since the State's entry
into the full NEPA Assignment Program, their required review and
documentation efforts dramatically increased. We learned from two
region office staff that, because of the increased workload, the region
office did not have sufficient resources to manage the workload
associated with the NEPA Assignment Program. A related concern was the
challenge in retaining qualified staff, possibly leading to a delay in
project delivery. (MOU Section 4.2.1 and 4.2.2)
Observation #4: Government-to-Government Consultation
Section 3.2.3 of the MOU excludes assignment of the responsibility
for Government-to-Government consultation with Tribes, to DOT&PF. The
Audit Team learned through interviews, and a check of DOT&PF's
environmental manual, that the DOT&PF has no written procedures on how
its staff are to accommodate a Tribal request for Government-to-
Government consultation with FHWA. Through interviews it was apparent
that DOT&PF's staff has an inconsistent understanding of how to handle
this scenario. Staff indicated they would like written guidance that
addresses the process that includes FHWA's role. (MOU Section 3.2.3)
Documentation and Records Management
The NEPA Assignment Program became effective on November 13, 2017.
From that effective date through February 28, 2018, the DOT&PF made 56
project decisions. By employing both judgmental and random sampling
methods, the Audit Team reviewed NEPA project documentation for 41 of
these decisions.
Successful Practices
The Audit Team recognizes several efforts to improve consistency of
filing project documentation learned through project documentation
reviews and interviews. These include: the use of a standardized
electronic folder structure developed by Central Region; a spreadsheet
template used in Central Region to manage tasks and standardize filing
of project documents; and Southcoast Region utilizing a document
[[Page 45185]]
specialist to ensure that project files are complete.
The Audit Team would also like to commend DOT&PF's use of the
optional 23 CFR 771.117(e) form for CE projects classified as c(26),
c(27), or c(28) because it clearly and efficiently demonstrates that
the conditions required for the project to be processed as a ``c-list''
CE have been met. We urge DOT&PF management to consider making this
form a required part of CE documentation.
Observation #5: Section 106 Compliance
Section 5.1.1 of the MOU requires the State to follow Federal laws,
regulations, policy, and procedures to implement the responsibilities
assumed, and Section 4.2.3 specifically calls out requirements
pertaining to historic properties. This review identified two examples
of deficient adherence to these Federal Section 106 compliance
procedures. The regulations that implement Section 106 of the NHPA
require the Agency Official to consider the impacts of their
undertaking on historic properties and to afford the State Historic
Preservation Officer (SHPO) an opportunity to comment. Through project
file reviews, the Audit Team identified one instance where the Section
106 review did not consider the full extent of the project's
undertaking. This was a project where an off-ramp bypass lane was added
to the project but was not considered as part of Section 106
compliance. Note that this error was also discovered by DOT&PF during
their self-assessment and corrective action has been completed. In the
second instance, the review of project file documentation revealed that
DOT&PF incorrectly made a decision that Section 106 compliance
requirements to make an effect determination did not apply.
Quality Assurance/Quality Control
The Audit Team recognizes that the DOT&PF is in the early stages of
the NEPA Assignment Program. However, the Audit Team made the following
observations related to QA/QC.
Successful Practices
The MOU requires the DOT&PF to conduct an annual self-assessment of
its QA/QC process and performance. The Audit Team found the DOT&PF's
self-assessment report to be well-written and comprehensive with in-
depth analyses. This documents their commitment to implementing a
compliant NEPA Assignment Program.
The Audit Team would like to recognize the SEO's use of the QA/QC
database for tracking QA/QC reviews. This allows them to quantify the
review results to better identify trends or areas of concern that
should be addressed.
The Audit Team learned through interviews that the Section 106
professionally qualified individuals in SEO review the information the
regions submit to the SHPO. The SEO staff said that the records were
adequate overall, but occasional follow up with individual regions was
necessary to increase the clarity and address possible omissions. This
SEO feedback should result in increased consistency and clarity in
Section 106 documentation subject to interagency review.
Observation #6: QC staff roles and responsibilities
The DOT&PF's QA/QC plan identifies a Project Development Team who
would review documents to ensure consistency, conciseness, and overall
quality, but it does not discuss specific responsibilities of
individual members for the QA/QC process. In addition, staff did not
consistently articulate the QA/QC responsibilities of the Project
Development Team members. The Audit Team would like to draw the
DOT&PF's attention to what appears to be an inconsistent awareness of
the use of Project Development Teams and the roles and responsibilities
of team members for QC.
Training Program
Per MOU Section 12 Training, the DOT&PF committed to implementing
training necessary to meet its environmental obligations assumed under
the NEPA Assignment Program. As required in the MOU the DOT&PF also
committed to assessing its need for training, developing a training
plan, and updating the training plan on an annual basis in consultation
with FHWA and other Federal Agencies as deemed appropriate.
The DOT&PF developed the 2018 Environmental Program Training Plan
to fulfill the requirements of Section 12 of the MOU. The 2018
Environmental Program Training Plan is a comprehensive document that
addresses a number of issues related to training including:
a variety of in-person and virtual training methods that
could be used by DOT&PF;
the timing of, and approach to, updating the 2018
Environmental Program Training Plan;
the development of an individual training plan (ITP) that
outlines both mandatory and non-mandatory training;
the training and experience the employees must acquire to
be considered for promotion; and
maintaining a record of trainings that were taken by
employees in the last 3 years and their anticipated training requests
for the upcoming year.
Successful Practices
Tracking environmental training is required by the DOT&PF's 2018
Environmental Program Training Plan. One PD&E Chief shared a
spreadsheet developed to track all the training taken by his staff,
including environmental courses. The Audit Team believes this tool will
help ensure employees received required training to advance the NEPA
Assignment Program.
Observations:
Observation #7: Training Program
MOU Sections 12.2, 4.2.2 and 4.2.3 require the DOT&PF to retain
staff and the organizational capacity to implement their program and to
implement training. Training often is an important tool for attaining
and maintaining staff and organizational capacity. The Audit Team asked
DOT&PF staff to share their perceptions about the training requirements
in the plan; the adequacy of the training budget; and how training
relates to their job responsibilities, performance, and employee
development and promotion. The Audit Team urges the DOT&PF to consider
ways to accommodate training needs and consider various approaches to
deliver necessary training in a timely manner:
a) Regarding training requirements, some interviewees said that the
DOT&PF's training plan requirements were unrealistic because either: 1)
staff was too busy working on projects to have the time to complete the
training courses identified in the plan; or 2) given the turnover rates
in their office and the frequency of training offered, employees were
unlikely to get all required training during their tenure. The Audit
Team considers the plan to be realistic and urges the DOT&PF to
consider ways to address these challenges.
b) Regarding the training budget, interview responses revealed no
consensus. The DOT&PF management indicated a strong desire to have a
robust NEPA program and some interviewees responded that they felt that
the training budget was adequate. However, responses from other
interviewees indicated that the training budget was inadequate,
especially as it relates to travel. The Audit Team was unable to
resolve whether the budget was inadequate and will consider this issue
again in the next audit.
c) The 2018 Environmental Program Training Plan links training to
employee
[[Page 45186]]
development and promotion. Interviews revealed: (1) inconsistent
preparation and use of an ITP as is required for employees; (2)
perceptions that training requirements for flexing from an Analyst 1 to
Analyst 2 position are clearly spelled out, but not for advancement
beyond an Analyst 2 position; (3) concerns that training opportunities
are too limited or not available; and (4) some employees have not had a
performance review in several years. Based on this input, the Audit
Team suggests that the DOT&PF focus on additional ways to improve
implementation of their Training Plan.
d) Regarding training needs, DOT&PF staff indicated a need for
Section 4(f) training, according to interviews in all three regions and
SEO. Multiple interviewees also identified a need for training in noise
and floodplains. Training needs cited at a lesser frequency included
ESA, cumulative effects, Section 408, EA/EIS, QA/QC, Planning and
Environmental Linkages, stream enhancement, NEPA, conflict resolution
and mediation. Given that the DOT&PF is now implementing additional
environmental review responsibilities based on the MOU, and staff
recognize the need to be prepared to embrace those responsibilities,
the Audit Team urges the DOT&PF to address these training needs
expeditiously, and be sensitive to ongoing training needs.
Performance Measures
The DOT&PF has demonstrated it has taken an active interest in
developing, monitoring, and implementing the performance measures
required by the MOU. The March 21, 2018, DOT&PF NEPA Assignment Self-
Assessment Summary Report contained the results of the DOT&PF's first
report of its assessment of NEPA Assignment and DOT&PF procedures
compliance. The DOT&PF's March 1, 2017, response to FHWA's PAIR
included answers to questions posed on performance measures. Because of
the information provided in these two documents, combined with the fact
that a relatively brief period of time has transpired since the MOU
became effective, the Audit Team has not identified any observations or
successful practices here. However, the following discussion describes
the current status of the DOT&PF's performance measures.
The DOT&PF's performance measure to assess change in communication
among the DOT&PF, Federal and State resource agencies, and the public
resulting from assumption of responsibilities under this MOU was based
on the experience of a single EA project, according to DOT&PF's self-
assessment summary report. Through interviews, the Audit Team learned
that the DOT&PF believes the resource agencies will observe little
change in communication and consultation because DOT&PF had been
operating under a 23 U.S.C. 326 MOU since September 2009.
The DOT&PF's self-assessment summary report suggests some early
efficiencies have been observed, but the consensus from interviews was
that it is too early to determine if substantial increased efficiencies
and timeliness will result from the program. Some individuals indicated
that over time the program should result in increased efficiencies and
timeliness.
Through interviews, the Audit Team learned that data for
performance measures are being collected and presented quarterly to
DOT&PF management for use in decisionmaking. Also, that DOT&PF believes
the existing performance measures are comprehensive and adequate. The
DOT&PF leadership said that performances measures will be evaluated
annually to determine if adjustment is needed.
Legal Sufficiency
Interviews with both staff and management attorneys emphasized the
legal sufficiency review process emulated FHWA's ``early legal
involvement'' concept, i.e., bringing a lawyer onto the reviewing team
at an early stage in project development. We learned that DOT&PF staff
do not need to go through management to talk to an attorney, but may
call or email at any time (and, with regard to EAs, have done so under
NEPA Assignment). Management noted specific review steps are to take
place at the both draft and final stages for assigned EISs and
Individual Section 4(f) Evaluations.
At this time, the Alaska Department of Law (DOL) expressed no
intention of expanding the number of staff attorneys assigned to
document review; however, it has a contingency plan should workload
increase significantly in future. Specifically, should DOT&PF be sued
over an assigned project, DOL tentatively intends to contract with
outside counsel (per 23 U.S.C. 327[a][2][G]) to handle the litigation
rather than make a single staff attorney divide his time between
document review and defending the case. The Transportation Section
attorney would act as support counsel to the litigators in a manner
similar to the way FHWA counsel provide litigation support to the U.S.
Department of Justice when it defends FHWA's environmental decisions in
court. (MOU Section 6.1.1)
Next Steps
The FHWA provided this draft audit report to DOT&PF for a 14-day
review and comment period. The Audit Team considered DOT&PF comments in
developing this draft audit report. The FHWA will publish a notice in
the Federal Register for a 30-day comment period in accordance with 23
U.S.C. 327(g). No later than 60 days after the close of the comment
period, FHWA will respond to all comments submitted to finalize this
draft audit report pursuant to 23 U.S.C. 327(g)(B). The FHWA will
publish the final audit report in the Federal Register.
[FR Doc. 2018-19184 Filed 9-4-18; 8:45 am]
BILLING CODE 4910-22-P