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Surface Transportation Project Delivery Program; Alaska Department of Transportation and Public Facilities Third Audit Report Publication: Federal Register Agency: Federal Highway Administration Byline: Stephanie Pollack Date: 15 February 2022 Subjects: American Government  , The Environment, Roads & Highways
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[Federal Register Volume 87, Number 31 (Tuesday, February 15, 2022)]
[Notices]
[Pages 8631-8635]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-03171]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
[FHWA Docket No. FHWA-2020-0014]
Surface Transportation Project Delivery Program; Alaska
Department of Transportation and Public Facilities Third 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
[[Page 8632]]
that allows a State to assume FHWA's environmental responsibilities for
environmental review, consultation, and compliance under the National
Environmental Policy Act (NEPA) and related environmental authorities
for Federal highway projects. When a State assumes these Federal
responsibilities, the State becomes solely responsible and liable for
carrying out the responsibilities it has assumed, in lieu of FHWA. This
program mandates annual audits during each of the first four years of
State participation to ensure compliance with program requirements.
This notice announces the availability of the third 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) 366-5074,
David.Williams@dot.gov, or Mr. Patrick Smith, Office of the Chief
Counsel, 202-366-1345, Patrick.C.Smith@dot.gov; Federal Highway
Administration, U.S. Department of Transportation, 1200 New Jersey
Avenue SE, Washington, DC 20590. Office hours are from 8:00 a.m. to
4:30 p.m., E.T., Monday through Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION:
Electronic Access
An electronic copy of this notice and the final audit report may be
downloaded from the specific docket page at www.regulations.gov, from
the Office of the Federal Register's website at
www.FederalRegister.gov, or from the Government Publishing Office's
website at www.GovInfo.gov.
Background
The Surface Transportation Project Delivery Program, codified at 23
U.S.C. 327, commonly known as the NEPA Assignment Program, allows a
State to assume FHWA's responsibilities for environmental review,
consultation, and compliance for Federal highway projects. When a State
assumes these Federal responsibilities, the State becomes solely liable
for carrying out the responsibilities it has assumed, in lieu of FHWA.
The DOT&PF published its application for NEPA assignment 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 (82 FR
40625), 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 to
conduct annual audits to ensure compliance with the MOU during each of
the first 4 years of State participation and, after the fourth year,
monitor compliance. FHWA must make the results of each audit available
for public comment. FHWA published a notice in the Federal Register for
a draft audit report on December 7, 2020 (85 FR 78914), soliciting
comments for 30 days pursuant to 23 U.S.C. 327(g). FHWA received
comments on the draft audit 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 audit report of DOT&PF's third audit under the program. The
final audit report is available for download at www.regulations.gov
under [FHWA Docket No. FHWA-2020-0014].
Authority: Section 1313 of Public Law 112-141; Section 6005 of
Public Law 109-59; 23 U.S.C 327; 23 CFR part 773.
Stephanie Pollack,
Deputy Administrator, Federal Highway Administration.
Surface Transportation Project Delivery Program, FHWA's Audit of the
Alaska Department of Transportation
April 6-10, 2020
Executive Summary
This report summarizes the results of the Federal Highway
Administration's (FHWA) third 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 Memorandum of Understanding
(MOU). The DOT&PF entered the NEPA Assignment Program 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 became effective on November 13, 2017. Currently,
FHWA's NEPA responsibilities in Alaska include the oversight and
auditing of the DOT&PF's execution of the NEPA Assignment Program and
certain activities excluded from the MOU, such as the NEPA reviews of
projects advanced by direct recipients other than the DOT&PF.
The FHWA audit team began to prepare for a site visit in November
2019. The audit team reviewed DOT&PF's NEPA project files, DOT&PF's
response to FHWA's pre-audit information request (PAIR), and considered
DOT&PF's Self-Assessment Report. On April 6-10, 2020, the audit team
conducted a completely virtual site visit rather than its traditional
in-person site visit due to COVID-19 pandemic travel restrictions.
The audit team appreciates DOT&PF's responsiveness to questions
regarding the status of general observations from the second audit.
This third audit report concludes with a status update for FHWA's
observations from the second 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 two general observations and three successful practices.
Background
The NEPA Assignment Program allows a State to assume FHWA's
responsibilities for environmental 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 other related environmental decisions for highway projects to
DOT&PF through an MOU on November 13, 2017. The MOU documents these
responsibilities. Examples of responsibilities DOT&PF has assumed in
addition to NEPA include Section 7 consultation under the Endangered
Species Act and consultation under Section 106 of the National Historic
Preservation Act.
This is the third of four required annual audits pursuant to 23
U.S.C.
[[Page 8633]]
327(g) and Part 11 of the MOU. FHWA uses audits as the primary
mechanism to 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 Section 10.2 of
the MOU, and collecting information needed for the Secretary's annual
report to Congress. FHWA must present its audit results in a report and
make it available for public comment in the Federal Register.
The audit team included NEPA subject matter experts from the FHWA
Alaska Division Office, the Chief Counsel's Office, the Resource
Center, and the Headquarters Offices of Project Development &
Environmental Review and Infrastructure.
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 Report. The
audit team also interviewed resource agencies and 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),
Training, Performance Measures, and Legal Sufficiency.
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 evaluated DOT&PFs compliance with assumed
responsibilities and adherence to their own processes and procedures
for project-level environmental decision-making. The audit team did not
evaluate DOT&PF's project-specific decisions. The 54 sampled files
included programmatic CEs (actions approved in the regional offices as
noted in DOT&PF's November 2017 NEPA Assignment Categorical Exclusion
guidance), CEs, Environmental Assessments (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 DOT&PF's responses to the
PAIR, which consisted of 32 questions about specific elements in the
MOU that DOT&PF must implement. The audit team used these responses to
develop specific follow-up questions for interviews with DOT&PF staff.
DOT&PF Self-Assessment Review: The audit team reviewed DOT&PF's
January 2020 Self-Assessment Report and used it to develop specific
follow-up questions for 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 21 interviews 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 and middle
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 five phone interviews
with staff at the U.S. Army Corps of Engineers (USACE) and the National
Marine Fisheries Service (NMFS).
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 Report.
Overall Audit Opinion
This report identifies two observations and three 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
has taken steps to address observations identified in the second audit.
Non-Compliance Observations
The audit team did not make any non-compliance observations in the
third audit.
Observations and Successful Practices
This section summarizes the audit team's observations of DOT&PF's
NEPA Assignment Program implementation, and DOT&PF's successful
practices. ``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. ``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, 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 fourth audit. The fourth 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 Practice #1: Consultation With Resource Agencies
The review team interviewed five staff from USACE and three staff
from NMFS. Under Section 3.2.1 of the MOU, the State assumed DOT
Secretary's responsibilities for highway projects under NEPA for
environmental review, reevaluation, consultation, or other actions
required under the Endangered Species Act, the Clean Water Act, and
other environmental laws. The audit teams' assessment of DOT&PF's
compliance with consultation and permitting requirements under this
section of the MOU resulted in the following five conclusions:
1. DOT&PF is submitting complete and accurate information to both
the USACE and NMFS for consultation and permitting requirements.
2. DOT&PF is very responsive when agencies request additional
information or revisions.
3. DOT&PF submits comprehensive and timely monitoring reports when
they are required for projects.
4. DOT&PF has improved their oversight of construction contractors'
adherence to USACE permit conditions. The DOT&PF has self-reported
permit
[[Page 8634]]
violations and worked with USACE to remedy the situation.
5. DOT&PF has a good working relationship with USACE and NMFS. Some
of the DOT&PF regions have set up regular meetings with the agencies to
foster relationships and enhance communication. Resource agency
interviews revealed that they think those meetings are helpful and
would like them to continue.
The USACE interviews identified an opportunity to increase the
efficiency of interagency coordination. The DOT&PF should more clearly
identify in the permitting package whether a project is a Federal
undertaking or not, and identify what coordination it has completed.
Observation #1: Self-Assessment Procedures
Section 8.2.5 of the MOU (Monitoring and Oversight), requires
DOT&PF to perform annual self-assessments of its QA/QC process and
performance to determine if the process is working as intended. Section
10.1.3 of the MOU (Performance Measurement) requires DOT&PF to collect
and maintain data related to the attainment of performance measures,
monitor progress towards meeting performance measures, and include its
progress in a self-assessment. The DOT&PF's 2018 NEPA Assignment
Program Self-Assessment Procedures require that SEO develop the
preliminary and final self-assessment report through coordination with,
and input from, the Regional Environmental Managers. The audit team
found that DOT&PF did not develop the January 2020 Self-Assessment
Report in accordance with their procedures, and did not distribute the
final report to the regions. The audit team based this finding on
interviews.
Documentation and Records Management
Documentation and Records Management includes maintaining project
files and other recordkeeping (whether hardcopy or electronic)
pertaining to DOT&PF's discharge of the responsibilities it has assumed
under the 23 U.S.C. 327 Program. From November 1, 2018, through October
31, 2019, DOT&PF made 287 project decisions. Through employing both
random and judgmental sampling procedures, the audit team identified 54
project decisions to review, and did not identify any systemic issues
warranting an observation.
Quality Assurance/Quality Control
Under Section 8.2.4 of the MOU, DOT&PF agreed to carry out regular
QA/QC activities in accordance with the MOU and DOT&PF procedures
established to implement the NEPA Assignment Program. Based on the
information evaluated by the audit team, DOT&PF is conducting regular
QA/QC activities in accordance with the MOU, though opportunities exist
to utilize trend data to continue improving the program.
Training
Under Sections 12.1 and 12.2 of the MOU, DOT&PF committed to
implementing training necessary to carry out the environmental
responsibilities 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.
Successful Practice #2: Central Region Organizational Cross-Training
Initiative
The Central Region has recently kicked off an organizational cross-
training initiative, called ``Share-The-Knowledge,'' that provides
opportunities for environmental analysts to get exposure to informal
training in other functional areas, such as transportation planning,
realty, safety, highway design, operations, and construction. Cross-
training provides a general awareness of how and to what extent NEPA
reviews can relate to project planning and inform Federal-aid highway
project development.
Successful Practice #3: Taking Advantage of Training Opportunities
Based on interviews, the audit team learned the South Coast Region
invited Federal resource agency representatives to monthly meetings to
encourage knowledge sharing and partnering. During a time when training
budgets are limited, FHWA encourages DOT&PF to continue to take
advantage of training opportunities that may be made available by
Federal partners. One example was when DOT&PF staff participated in the
recent NMFS acoustic training in Anchorage.
Performance Measures
The DOT&PF continues to collect, maintain, and develop data towards
monitoring its performance as required by Section 10.1.3 of the MOU.
The audit team noted the following observation related to Performance
Measures.
Observation #2: Assessing Resource Agency Communication
Section 10.2.1 C. of the MOU requires DOT&PF to ``Assess change in
communication among DOT&PF, Federal and State agencies, and the public
resulting from assumption of responsibilities under this MOU.'' The MOU
allows DOT&PF to determine the method it will use to assess this
change. The DOT&PF selected to use an annual resource agency poll. The
DOT&PF identified this measure in its DOT&PF NEPA Assignment Program
Performance Measures document located on its website. In addition,
DOT&PF reported in this audit, and Audits 1 and 2, that an annual
resource poll would be the method for collecting data towards
monitoring this measure. The DOT&PF has not used a resource agency poll
to date. Through the audit team's review of DOT&PF's Self-Assessment,
PAIR, and audit interviews with DOT&PF, the audit team found that a
poll was not a useful tool to assess changes in communication. The FHWA
recommends that DOT&PF consider changing the method for reporting this
measure.
Legal Sufficiency
Since 2017, the same attorney from the Department of Law (DOL),
Transportation Section, has been 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 exceeded the
standard set forth in the Environmental Procedures Manual, with the
attorney being involved early in project development, normally
reviewing a NEPA document before receiving a formal request for a legal
sufficiency review. During the audit period, the attorney reviewed one
Final Section 4(f) Evaluation and issued a finding of legal sufficiency
in August 2019. The attorney did not review an environmental impact
statement during the audit period.
The DOL management stated during the interviews that while one
attorney is currently assigned to the program, should workload increase
significantly another attorney would be assigned to NEPA work, perhaps
through the utilization of outside counsel per 23 U.S.C. 327(a)(2)(G).
Based on these observations, the audit team finds that the DOT&PF
meets the legal sufficiency determination and staffing requirements set
forth in the DOT&PF Environmental Procedures Manual.
[[Page 8635]]
Status of Observations From Audit #2 Report (April 2019)
This section describes the actions DOT&PF has taken (or is taking)
in response to observations made during the second audit.
Observation #1: Applicability of Existing Interagency Agreements
Section 5.1.3 of the MOU required 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. During Audit 2, the audit
team determined that none of DOT&PF's existing agreements applied to
the current NEPA Assignment Program under 23 U.S.C. 327. According to
the January 2020 Self-Assessment Report, ``DOT&PF is not currently
pursuing agency agreements per Section 5.1.4 of the MOU regarding
appropriate processes and procedures.''
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). Audit 2 revealed inconsistencies regarding the delegation of
NEPA approvals within DOT&PF. The DOT&PF's January 2020 Self-Assessment
states that DOT&PF will incorporate a protocol that standardizes the
delegation authority for NEPA approval in the regions in the February
2020 update of its EPM. The DOT&PF has not made any changes to the EPM
since February 2018 per the DOT&PF's response to Audit 3's Pre-Audit
Information Request. In interviews conducted as part of Audit 3, DOT&PF
relayed plans to incorporate this protocol into the EPM in May 2020.
Currently, each region has its own delegation process. Generally,
DOT&PF delegates NEPA approvals to the senior staff and communicates
that delegation via email to affected parties. Most staff interviewed
understand their region's delegation process and new staff are becoming
oriented with the process.
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 staff
capacity. Moderate to high staff turnover has been a recurring issue
since the MOU went into effect (Audit #1 report Observation #3 and
Audit #2 report Observation #3). According to the January 2020 Self-
Assessment Report, ``DOT&PF's staffing levels were a concern during
this audit period and senior staff expended considerable effort to hire
new qualified staff and to retain current staff. As a result of this
effort, the regional offices are now fully or near fully staffed.''
DOT&PF is aware of the issue and continues to track staffing impacts on
the NEPA Assignment Program through the QA/QC process.
Observation #4: Documentation of Environmental Commitments
Section 5.1.1 of the MOU requires the State to follow Federal laws,
regulations, policies, and procedures to implement the responsibilities
assumed. Audit 2 revealed inconsistencies regarding how DOT&PF was
documenting environmental commitments and making sure that DOT&PF
carries the environmental commitments through the project development
process and into construction. The DOT&PF developed written guidance on
the documentation of environmental commitments. According to the
January 2020 Self-Assessment Report, the guidance was implemented on
May 5, 2019. Based on the interviews conducted as part of Audit 3,
DOT&PF staff understood who certified that the environmental
commitments were included in the plan, specifications, and estimates,
as well as their role in the certification process.
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. During Audit 2,
the audit team found one project file with an inconsistency between
project termini shown in a project plan and that described in the STIP,
and similar inconsistencies in the DOT&PF's Audit 2 Self-assessment.
Project scope inconsistencies were not found by the file review team
during Audit 3. The DOT&PF's Audit 3 Self-assessment identified one
instance of a project description discrepancy that did not affect the
scope of the project. Regional QC efforts appear to have improved this
issue, although DOT&PF noted in their self-assessment that using the
STIP project description as the project scope in environmental
documents is not possible for all projects.
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 did not update its Training Plan
prior to or during the Audit 2 process. In their response to the Audit
3 PAIR, DOT&PF stated ``the training plan was updated on October 29,
2019, with minor revisions to Section 5. A list of proposed training
has been added to this section and the RD&T2 [Research, Development,
and Technology Transfer], FHWA, and Prior Training Requests subsections
have been removed.'' Based on the information gathered through the PAIR
and interviews, the audit team is satisfied that the DOT&PF addressed
the training observation from the second audit. Moving forward, DOT&PF
committed to coordinating with the FHWA Alaska Division Office and
other Federal Agencies, as appropriate, for the future annual updates
of the training plan.
[FR Doc. 2022-03171 Filed 2-14-22; 8:45 am]
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