[Federal Register Volume 83, Number 166 (Monday, August 27, 2018)]
[Notices]
[Pages 43726-43730]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-18476]



[[Page 43726]]

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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.

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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 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 
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 finalizes the findings of the first 
audit report for the FDOT's participation in accordance to FAST Act 
requirements.

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, 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 end 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 finalizes 
the finding of the first audit report for the FDOT participation in 
accordance to FAST Act requirements. A draft version of this report was 
published in the Federal Register on April 18, 2018, at 83 FR 17216, 
and was available for public review and comments. The FHWA received 
three responses to the Federal Register Notice during the public 
comment period for this draft report. None of comments were 
substantive; one from the American Road and Transportation Builders 
Association voiced support of this program and another was anonymous 
that was unrelated to this report. The remaining comments came from 
FDOT. The Audit Team met with FDOT to discuss their comments throughout 
the Audit report development. The FHWA considered FDOT's comments not 
to be substantive but nonetheless revised the report language in 
several instances. This notice includes a final version of the audit 
report that addresses all comments submitted on the draft audit report.

    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.

Brandye L. Hendrickson,
Deputy Administrator, Federal Highway Administration.

FINAL

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 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. Through this report, FHWA is notifying 
FDOT of one non-compliance observation that requires FDOT to take 
corrective action. By addressing the observations in this

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report, FDOT will continue to assure a successful program.

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 6 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 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 assure a successful 
program.

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 three observations in this report. Successful 
practices are practices that the Audit Team believes are successful, 
and

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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 and 
tracked. During the interviews, OEM and district staff indicated 
inconsistencies in 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, though it has not had occasion to do 
so, FDOT stated they would implement new Federal statutory requirements 
or U.S. Department of Transportation (DOT) regulations, without FHWA 
consultation. This approach may establish FDOT policy or guidance in 
advance of FHWA, which could 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. The FHWA met with FDOT to discuss its need 
for informed decision making necessary for new Federal requirements. 
The FDOT clarified that they intended to consult with FHWA in order to 
gain information on emerging policy and guidance in order to make 
informed decisions.

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 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 could be broadened and made 
more responsive
    The FDOT QA/QC Plan identified only the Self-Assessment as FDOT's 
QA tool. The FDOT 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 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 
overall process should be broader in scope in order to identify and 
correct any deficiencies. The FHWA met with FDOT to discuss FDOT's 
approach to QA. The FDOT clarified that they have other quality 
assurance tools in addition to the Self- Assessment. The FHWA will 
include a consideration of FDOT's quality assurance tools in its next 
audit review.

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 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

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needed. In preparation for NEPA Assignment, OEM also provided several 
in-person sessions for the districts. The training was recorded and is 
available online.
    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 47 of the 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 9 of 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 FHWA discussed 
FDOT's comment on this non-compliance observation and the State 
acknowledged an issue with project documentation. The FDOT indicated 
that they would share the updated details regarding the 47 project 
files and they were already implementing corrective actions to address 
this issue.
    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 CE, 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 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

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supporting documentation. The FDOT believes that this system 
improvement will ensure that supporting documentation, which 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.

Finalizing this Report

    The FHWA received three responses to the Federal Register Notice 
during the public comment period for this draft report. None of 
comments were substantive; one from the American Road and 
Transportation Builders Association voiced support of this program and 
another was anonymous that was unrelated to this report. The remaining 
comments came from FDOT. The Audit Team met with FDOT to discuss their 
comments throughout the Audit report development. The FHWA considered 
FDOT's comments not to be substantive but nonetheless revised the 
report language in several instances. This notice includes a final 
version of the audit report that addresses all comments submitted on 
the draft audit report.

[FR Doc. 2018-18476 Filed 8-24-18; 8:45 am]
 BILLING CODE 4910-22-P