[Federal Register Volume 83, Number 75 (Wednesday, April 18, 2018)]
[Notices]
[Pages 17216-17220]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-08100]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

[FHWA Docket No. FHWA-2018-0004]


Surface Transportation Project Delivery Program; Florida DOT 
Audit #1 Report

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

ACTION: Notice, request for comment.

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SUMMARY: The Surface Transportation Project Delivery Program allows a 
State to assume FHWA's environmental responsibilities for review, 
consultation, and compliance for Federal highway projects. When a State 
assumes these Federal responsibilities, the State becomes solely 
responsible and liable for 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 is the first audit of the Florida 
Department of Transportation's (FDOT) performance of its 
responsibilities under the Surface Transportation Project Delivery 
Program (National Environmental Policy Act (NEPA) assignment program). 
This notice announces and solicits comments on the first audit report 
for the FDOT's participation in accordance to FAST Act requirements.

DATES: Comments must be received on or before May 18, 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 comments must include a self-
addressed, stamped postcard or you may print the acknowledgment page 
that appears after submitting comments electronically. Anyone is able 
to search the electronic form of all comments in any one 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: Ms. Marisel Lopez Cruz, Office of 
Project Development and Environmental Review, (202) 493-0356, 
[email protected], or Mr. David Sett, Office of the Chief 
Counsel, (404) 562-3676, [email protected], Federal Highway 
Administration, Department of Transportation, 61 Forsyth Street 17T100, 
Atlanta, GA 30303. 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 (or NEPA 
Assignment Program) allows a State to assume FHWA's environmental 
responsibilities for review, consultation, and compliance for Federal 
highway projects. This provision has been codified at 23 U.S.C. 327. 
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. The FDOT published in the Florida 
Administrative Register its application for assumption under the NEPA 
Assignment Program on April 15, 2016, and made it available for public 
comment for 30 days. After considering public comments, FDOT submitted 
its application to FHWA on May 31, 2016. The application served as the 
basis for developing the memorandum of understanding (MOU) that 
identifies the responsibilities and obligations FDOT would assume. The 
FHWA published a notice of the draft MOU in the Federal Register on 
November 1, 2016, 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 FDOT considered comments and proceeded to execute the MOU. 
Effective December 14, 2016, FDOT assumed FHWA's responsibilities under 
NEPA, and the responsibilities for reviews under other Federal 
environmental requirements.
    Section 327(g) of Title 23, United States Code, 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 FDOT and solicits public 
comment on same.

    Authority: Section 1313 of Public Law 112-141; Section 6005 of 
Public Law 109-59; Public Law 114-94; 23 U.S.C. 327; 49 CFR 1.85; 23 
CFR 773.

    Issued on: April 11, 2018.
Brandye L. Hendrickson,
Acting Administrator, Federal Highway Administration.

DRAFT

Surface Transportation Project Delivery Program

FHWA Audit #1 of the Florida Department of Transportation

December 2016 to May 2017

Executive Summary

    This is the first audit of the Florida Department of 
Transportation's (FDOT's) performance of its responsibilities under the 
Surface Transportation Project Delivery Program (National Environmental 
Policy Act (NEPA) assignment program). Under the authority of 23 United 
States Code

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(U.S.C.) 327, FDOT and Federal Highway Administration (FHWA) executed a 
memorandum of understanding (MOU) on December 14, 2016, whereby FHWA 
assigned and FDOT assumed FHWA's NEPA responsibilities and liabilities 
for Federal-aid highway projects and other related environmental 
reviews for transportation projects in Florida.
    The FHWA formed a team in January 2017 to conduct an audit of 
FDOT's performance according to the terms of the MOU. The Audit Team 
held internal meetings to prepare for an on-site visit to the Florida 
Division and FDOT offices. Prior to the on-site visit, the Audit Team 
reviewed FDOT's NEPA project files, FDOT's response to FHWA's pre-audit 
information request (PAIR), and FDOT's Self-Assessment Summary Report 
of its NEPA program. The Audit Team conducted interviews with FDOT and 
resource agency staff and prepared preliminary audit results from 
October 16 to 20, 2017. The Audit Team presented these preliminary 
observations to FDOT Office of Environmental Management (OEM) 
leadership on October 20, 2017.
    Upon accepting the NEPA assignment responsibilities, FDOT updated 
its procedures and processes as required by the MOU. Overall, the Audit 
Team found that FDOT is committed to establishing a successful NEPA 
program. This report describes several successful practices, three 
observations, and one non-compliance observation. The FDOT has carried 
out the responsibilities it has assumed in keeping with the intent of 
the MOU and FDOT's Application. Addressing the observations in this 
report will allow FDOT to continue to move the program toward success.

Background

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

Scope and Methodology

    The overall scope of this audit review is defined both in statute 
(23 U.S.C. 327) and the MOU (Part 11). An audit generally is defined as 
an official and careful examination and verification of accounts and 
records, especially of financial accounts, by an independent unbiased 
body. With regard to accounts or financial records, audits may follow a 
prescribed process or methodology and be conducted by ``auditors'' who 
have special training in those processes or methods. The FHWA considers 
this review to meet the definition of an audit because it is an 
unbiased, independent, official and careful examination and 
verification of records and information about FDOT's assumption of 
environmental responsibilities.
    The Audit Team consisted of NEPA subject matter experts from the 
FHWA offices in Juneau, Alaska, Denver, Colorado, Columbus, Ohio, 
Washington, District of Columbia, Atlanta, Georgia, Austin, Texas, as 
well as staff from the FHWA Florida Division. The diverse composition 
of the team, as well as the process of developing the review report and 
publishing it in the Federal Register, are intended to make this audit 
an unbiased official action taken by FHWA.
    The Audit Team conducted a careful examination of FDOT policies, 
guidance, and manuals pertaining to NEPA responsibilities, as well as a 
representative sample of FDOT's project files. Other documents, such as 
the June 2017 Six-month status update report from FDOT, the August 2017 
PAIR responses, and FDOT's September 2017 Self-Assessment Summary 
Report, informed this review. The Audit Team interviewed FDOT staff and 
resource agency staff. This review is organized around six NEPA 
assignment program elements: Program management, documentation and 
records management, quality assurance/quality control (QA/QC), legal 
sufficiency, performance measurement, and training program. In 
addition, the Audit Team considered three cross-cutting focus areas: 
(1) Engineering Analysis within the NEPA process; (2) Archaeological 
and Historical Resources; and (3) Protected Species and Habitat.
    The Audit Team defined the timeframe for highway project 
environmental approvals subject to this first audit to be between 
December 2016 and May 2017, when 209 projects were approved. The team 
drew both representative and judgmental samples totaling 77 projects 
from data in FDOT's online file system, Statewide Environmental Project 
Tracker (SWEPT). In the context of this report, Type 1 CE and Type 2 CE 
are consistent with FDOT's Project Development and Environmental 
Manual. The FHWA judgmentally selected all Type 2 categorical 
exclusions (CEs) (3 projects), all reevaluations (12 projects), all 
Environmental Assessments (EAs) with Findings of No Significant Impacts 
(FONSIs) (3 projects), all Environmental Impact Statements (EISs) with 
Records of Decision (RODs) (no projects fell into this category), and 
all Type 1 CE projects completed under 23 CFR 771.117(d) CEs (9 
projects). Fifty randomly selected project files came from the 
remaining 182 Type 1 CEs completed under 23 CFR 771.117(c), applying a 
90 percent confidence level and a 10 percent margin of error to the 
sample. The Audit Team reviewed projects in all FDOT's seven districts.
    The Audit Team submitted a PAIR to FDOT that contained 55 questions 
covering all six NEPA assignment program elements. The FDOT responses 
to the PAIR were used to develop specific follow-up questions for the 
on-site interviews with FDOT staff.
    The Audit Team conducted a total of 42 interviews. Interview 
participants included staff from four of FDOT's seven district 
offices--District 1 (Bartow), District 2 (Lake City), District 5 
(Deland), and District 7 (Tampa)--and FDOT Central Office. The audit 
team interviewed FDOT environmental staff, middle management, and 
executive management, regional representatives from the U.S. Army Corps 
of Engineers (USACE), U.S. Fish and Wildlife Service (USFWS), and the 
State Historic Preservation Officer (SHPO) from the Florida Department 
of State, Division of Historic Resources.
    The Audit Team compared the procedures outlined in FDOT policies 
and environmental manuals (including the published 2016 Project 
Development & Environment (PD&E) Manual) to the information obtained 
during interviews and project file reviews to determine if there are 
discrepancies between FDOT's performance and documented procedures. 
Individual observations were documented during interviews and reviews 
and combined under the six NEPA Assignment Program elements. The audit 
results are described below by program element.

Overall Audit Opinion

    The Audit Team recognizes that FDOT is in the early stages of the 
NEPA Assignment Program and FDOT's programs, policies, and procedures 
may still be in the process of being incorporated into its program 
statewide. The FDOT's efforts have been focused

[[Page 17218]]

on establishing and refining policies, procedures and guidance 
documents; establishing the SWEPT tracking system for ``official 
project files''; training staff; establishing a QA/QC Plan; and 
conducting a self-assessment for monitoring compliance with the assumed 
responsibilities. The FDOT has carried out the responsibilities it has 
assumed consistent with the intent of the MOU and FDOT's Application. 
By addressing the observations in this report, FDOT will continue to 
move the program toward success.

Non-Compliance Observation

    A non-compliance observation is an instance where the Audit Team 
finds the State is not in compliance or is deficient with regard to a 
Federal regulation, statute, guidance, policy, State procedure, or the 
MOU. Non-compliance may also include instances where the State has 
failed to secure or maintain adequate personnel and or financial 
resources to carry out the responsibilities they have assumed. The FHWA 
expects the State to develop and implement corrective actions to 
address all non-compliance observations.
    The Audit Team identified one non-compliance observation during 
this first audit.

Observations and Successful Practices

    Observations are items the Audit Team would like to draw FDOT's 
attention to, which may improve processes, procedures, and/or outcomes. 
The Audit Team identified four observations in this report. Successful 
practices are practices that the Audit Team believes are successful, 
and encourages FDOT to consider continuing or expanding those programs 
in the future. The Audit Team identified several successful practices 
in this report. All six MOU program elements are addressed here as 
separate discussions.
    The Audit Team acknowledges that sharing the draft audit report 
with FDOT allows the Agency to begin implementing corrective actions to 
improve the program. The FHWA will also consider the status of these 
observations as part of the scope of Audit #2.

Program Management

Successful Practices

    The Audit Team learned that FDOT has maintained its good working 
relationship with the three resource agencies interviewed--USFWS, 
USACE, SHPO. Each agency stated that FDOT coordinated any changes in 
their program with the Agency to ensure satisfaction with their 
regulatory requirements.

Observation 1: FDOT environmental commitment documentation and tracking

    The Audit Team noted in interviews and project file reviews that 
FDOT's environmental commitments were inconsistently documented, 
tracked, and implemented. During the interviews, OEM and district staff 
indicated a different understanding of how commitment compliance is 
accomplished in FDOT and the function and use of the Project Commitment 
Record (PCR) Form. District staff have developed different tools than 
the PCR to track commitment compliance. Both the Self-Assessment 
Summary Report and project file reviews indicated that commitments were 
not being included verbatim into the Commitments Section of some NEPA 
documents or reevaluations. The Audit Team noted that commitments are 
not consistently transferred onto PCR forms for tracking through the 
various phases of project development. The Audit Team encourages FDOT 
to implement the commitment compliance recommendations identified in 
their 2017 Self-Assessment Summary Report to address this observation.

Observation 2: FDOT Program level coordination to address MOU 
requirements

    During the audit interviews, FDOT stated they are implementing new 
Federal or U.S. Department of Transportation (DOT) policy, including 
executive orders, without FHWA consultation. This approach may 
establish policy or guidance in advance of FHWA, which could increase 
the risk of conflict with any subsequent DOT/FHWA issued policy or 
guidance. If such a conflict should occur, FDOT would then need to 
change their policies and procedures to meet the DOT/FHWA guidance. 
According to MOU subpart 5.2.1 FDOT may not establish policy and 
guidance on behalf of the DOT Secretary or FHWA for highway projects 
covered in the MOU.

Quality Assurance/Quality Control

Successful Practices

    The FDOT has implemented several successful practices to ensure the 
quality of its NEPA documents. As an example of a successful QA/QC 
practice, one district developed a checklist to provide better quality 
control in making sure they were uploading the necessary information 
into SWEPT for project review and coordination. As they received 
comments from OEM, the district adjusted their checklist so that future 
projects would also benefit from the OEM comments.

Observation 3: FDOT's approach to QA/QC could be broadened and made 
more responsive

    The FDOT's QA/QC tool was the self-assessment. The FDOT's self-
assessment considered five focus areas for compliance: commitments; 
ponds; species and habitat; QA/QC; and Type 1 CE projects. Both FHWA 
and FDOT reviewed the same 27 projects (exclusive of Type I CEs 
completed under 23 CFR 771.117(c)) and identified a similar number of 
projects with documentation issues for the focus areas in common 
(commitments and species and habitat). However, the Audit Team 
identified additional project documentation or compliance issues not 
identified by FDOT. While the FHWA acknowledges that FDOT has employed 
quality assurance as a corrective action to address missing information 
for projects, FDOT's obligation under the MOU is that its QA/QC process 
identify and address the full range of compliance obligations it has 
assumed. Though concentrating on focus areas is appropriate for a Self-
Assessment Summary Report, FDOT's QA/QC overall process should be 
broader in scope in order to identify and correct any deficiencies.

Legal Sufficiency

    The Audit Team's review of FDOT's legal sufficiency program found 
that FDOT has structured the legal sufficiency process for the NEPA 
Assignment Program by having in house counsel as well as being able to 
contract with outside counsel who have NEPA experience. Because FDOT is 
in the early stages of implementation, no legal sufficiency 
determinations have been made during the audit time frame.

Successful Practices

    The FDOT Office of General Counsel (OGC) is fully engaged in the 
NEPA process. Legal staff participate in monthly coordination meetings 
and topic specific meetings with OEM and the districts. They also 
review other documents as requested for legal input. There is close 
collaboration throughout the process among OGC, OEM, the districts, and 
districts' attorneys.
    Based on the information provided, the FDOT OGC is adequately 
staffed to provide management and oversight of the NEPA assignment 
process. In addition, FDOT attorneys located in each of the seven 
districts provide

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supplemental support to the dedicated NEPA OGC staff as needed.

Training Program

Successful Practices

    The Audit Team learned through interviews that employee training is 
a corporate priority at FDOT. The FDOT's training is considered a 
successful practice in four respects:
    First, FDOT developed its own on-line NEPA Assignment training. 
These succinct Web-based training videos address new NEPA assignment 
processes, including performance measures, the FHWA audit process, QA/
QC, and the FDOT self-assessment process. Such training contributes to 
a consistent understanding of and participation in these aspects of the 
NEPA Assignment Program among all FDOT staff.
    Second, FDOT provides employees ample training opportunities. 
Employees are notified of those opportunities through training 
coordinators and the Learning Curve system, which provides a library of 
courses. The training helps FDOT employees understand new roles and 
responsibilities and is available as needed. In preparation for NEPA 
Assignment, OEM also provided several in-person sessions for the 
districts. The training was recorded and is available on line.
    Third, FDOT employees are required to have an Individual Training 
Plan (ITP). The plan includes required subject matter courses and 
courses that promote development of technical and leadership skills.
    Finally, training is integrated into employee performance 
evaluations and employees' ITPs are discussed with supervisors on an 
annual basis, thereby emphasizing the importance of training and 
promoting compliance with training requirements. Completion of training 
is incorporated into the employees' and supervisors' performance 
evaluations.

Performance Measures

    The FDOT presented a discussion of their performance measures that 
implement those listed in MOU Section 10.2 in the July 2017 revision of 
their QA/QC Plan. In that discussion, FDOT developed several sub-
measures along with performance targets, responsible parties, relevant 
processes, and desired outcomes identified (see Appendix A of the 
Plan--http://www.fdot.gov/environment/sched/files/APPROVED-FDOT-OEM-QAQC-Plan_-Dec222017-revised2017-0712.pdf). This plan also identifies 
FDOT's method of performance monitoring using SWEPT as well as how OEM 
will, when needed, take corrective action to improve performance.
    The FDOT Self-Assessment Summary Report contained the results of 
FDOT's first report of its assessment of the NEPA Assignment Program 
and FDOT procedures compliance. This assessment, for the period between 
December 14, 2016, and April 30, 2017, entailed review of project files 
as well as results from a survey of Agency satisfaction. The report 
also included a discussion of FDOT's progress in attaining performance 
results.

Successful Practices

    The FDOT has demonstrated it has taken an active interest in 
developing, monitoring, and implementing the performance measures as 
required by the MOU. In reviewing Section 3 of the FDOT Self-Assessment 
Summary Report, the Audit Team noted that FDOT is the first NEPA 
assignment State to create a training module on performance measures. 
This module, available to all FDOT staff, explains performance metrics, 
how the measures are computed in SWEPT, performance monitoring, and how 
the measures appear in FDOT's annual Self-Assessment Summary Report. 
During the interviews, FDOT's leadership indicated that they wanted 
performance measures to account for, objectively measure, and use 
quantitative data to support FDOT performance. They also made it clear 
that FDOT is measuring something worthwhile and plans to revisit the 
performance metrics over time.

Documentation and Records Management

    The SWEPT has been identified as FDOT's project file of record, in 
which FDOT maintains approved reevaluations, CEs, EAs, and EISs. The 
Electronic Review and Comments (ERC) system is an internal tool to 
capture review and comments on the environmental documents. During the 
audit interviews, FDOT staff indicated only final documents are 
maintained in the SWEPT system. The Audit Team has full access to SWEPT 
but has no access to ERC.

Successful Practices

 The FHWA commends FDOT's use of the ERC system to document 
internal review and comments on NEPA documents and to maintain a record 
of the disposition of those comments.
 The FDOT's statewide implementation of SWEPT as the 
administrative file of record used for decision making and documenting 
compliance with the NEPA process facilitated the Audit Teams review of 
project files. The following features are particularly notable:
 The date-stamping of data in SWEPT is used for performance 
measurement tracking.
 The SWEPT, with its Bates stamping ability, facilitates 
administrative records and open records request compilations.
 The June 2017 SWEPT update includes Type 1 CE ``smartforms'' 
which provide internal controls that increases certainty of NEPA 
compliance.

Non-Compliance Observation 1: Some FDOT project files contain 
insufficient documentation to support the environmental analysis or 
decision

    Both the MOU (subpart 10.2.1) and FDOT's PD&E Manual specify that 
documentation is needed to support compliance. The Audit Team observed 
that forty-seven (47) of the seventy-seven (77) project files reviewed 
did not have sufficient documentation in SWEPT to support the 
environmental analysis or NEPA decision. The FDOT Self-Assessment 
reached similar conclusions, and identified nine (9) of thirty-six (36) 
projects having insufficient documentation. The Audit Team could not 
determine if the discrepancy indicated documentation had not been 
uploaded into SWEPT or if the required process had not been completed. 
The team provided a list of these projects along with a draft of this 
report to FDOT for their review and comment. The FDOT provided their 
comments on this report, but did not provide additional information to 
clarify whether documentation was not uploaded or a required process 
was not completed.
    The FDOT has committed to comply with all applicable environmental 
review requirements to highway projects it has assumed and to maintain 
documentation of this compliance. The file review of projects, most, 
but not all, of which were processed with a categorical exclusion, 
identified the following deficiencies in supporting documentation: (1) 
missing or outdated technical documents referenced in the NEPA 
document; (2) using FDOT standard specifications for Endangered Species 
Act compliance instead of conducting consultation when species are 
known to be present, missing documentation of consultation, missing 
impacts analysis, missing documentation which concludes with a finding, 
and missing concurrence documentation from applicable agencies; (3) 
missing documentation of

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Section 106 consultation, (4) missing or incorrect documentation for 
fiscal constraint (for several levels of documents including Type 1 
CEs); (5) missing environmental commitments identified in technical 
reports, and commitments not carried forward in reevaluations; (6) 
missing Section 4(f) impacts/avoidance analysis; (7) missing 
documentation to support floodplain effects finding; (8) missing 
documentation to support the wetlands finding; 9) missing documentation 
for Essential Fish Habitat consideration; (10) missing documentation of 
community and other resources impacts when addressing ROW changes; and 
(11) missing documentation of water quality considerations.
    The FDOT has informed the Review Team that they have implemented 
some corrective actions to address missing documentation. The FDOT 
staff interviews revealed that the SWEPT system was updated to include 
a control to not allow a project file review to be completed without 
uploading all supporting documentation. The FDOT believes that this 
system improvement will ensure that supporting documentation, that was 
sometimes missing as SWEPT was initially implemented would now be 
present prior to an approval point. The implementation of these 
improvements was incorporated after the audit project file review time 
frame.

Next Steps

    The FHWA provided a draft of the audit report to FDOT for a 14-day 
review and comment period, later extended to 21-days due to the 
holidays occurring during the review period. The Audit Team considered 
FDOT's comments in 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 address all comments submitted to 
finalize this draft audit report pursuant to 23 U.S.C. 327(g)(B). 
Subsequently, FHWA will publish the final audit report in the Federal 
Register.

[FR Doc. 2018-08100 Filed 4-17-18; 8:45 am]
 BILLING CODE 4910-22-P