[Federal Register Volume 85, Number 35 (Friday, February 21, 2020)]
[Notices]
[Pages 10212-10216]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-03465]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

[FHWA Docket No. FHWA-2019-0040]


Surface Transportation Project Delivery Program; Florida DOT 
Audit #3 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 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 third 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 
third audit report for FDOT.

DATES: Comments must be received on or before March 23, 2020.

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 can 
search the

[[Page 10213]]

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, (407) 867-6402, 
[email protected], Federal Highway Administration, U.S. 
Department of Transportation, 1200 New Jersey Avenue SE, Washington, DC 
20590, or Mr. David Sett, Office of the Chief Counsel, (404) 562-3676, 
[email protected], Federal Highway Administration, U.S. Department of 
Transportation, 60 Forsyth Street SW, 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, 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. 
Effective December 14, 2016, FDOT assumed FHWA's responsibilities for 
environmental review and the responsibilities for reviews under other 
Federal environmental requirements.
    Section 327(g) of Title 23, U.S.C., requires the Secretary to 
conduct annual audits to ensure compliance with the memorandum of 
understanding during each of the first 4 years of State participation 
and, after the fourth year, monitor compliance. The results of each 
audit must be made available for public comment. The second audit 
report was published in the Federal Register on November 29, 2019, at 
84 FR 65891. This notice announces the availability of the third audit 
report for FDOT and solicits comments on the 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: February 13, 2020.
Nicole R. Nason,
Administrator, Federal Highway Administration.

Surface Transportation Project Delivery Program
Draft FHWA Audit #3 of the Florida Department of Transportation
May 2018 to April 2019

Executive Summary

    This is the third audit of the Florida Department of 
Transportation's (FDOT) assumption of National Environmental Policy Act 
(NEPA) responsibilities under the Surface Transportation Project 
Delivery Program. Under the authority of 23 U.S.C. 327, FDOT and the 
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 2019 to conduct an audit of 
FDOT's performance according to the terms of the MOU. The 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 team 
reviewed FDOT's 2019 Project Development & Environment (PD&E) Manual 
and NEPA project files, FDOT's response to FHWA's pre-audit information 
request (PAIR), and FDOT's NEPA Assignment Self Assessment Summary 
Report. The team presented initial project file observations to FDOT 
Office of Environmental Management (OEM) on August 1, 2019. The team 
conducted interviews with FDOT and prepared preliminary audit results 
from September 23-26, 2019. The team presented these preliminary 
observations to FDOT OEM leadership on September 27, 2019.
    The FDOT continues to develop, revise, and implement procedures and 
processes required to carry out the NEPA Assignment Program. Overall, 
the team found that FDOT is committed to delivering a successful NEPA 
Program. This report describes numerous successful practices 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 
the one non-compliance observation that requires FDOT to take 
corrective action. By addressing the observation in this report, FDOT 
will continue to assure a successful program. The report concludes with 
the status of FHWA's non-compliance observations from the first and 
second audit reviews, including any FDOT self-imposed corrective 
actions.

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 third audit in Florida and 
includes a summary discussion that describes progress since the last 
audit. Following this audit, FHWA will conduct one more annual NEPA 
Assignment Program 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 team consisted of NEPA subject matter experts (SME) from FHWA 
offices in Texas, Georgia, and Headquarters, as well as staff from 
FHWA's 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 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

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August 2019 PAIR responses and FDOT's August 2019 Self Assessment 
Summary Report, also informed this review. In addition, the team 
interviewed FDOT staff in person and via video conference. This review 
is organized around the 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 team considered three cross-
cutting focus areas: (1) Interchange Access Requests (IAR); (2) project 
authorizations; and (3) permanent Emergency Repair (ER) projects.
    The team defined the timeframe for highway project environmental 
approvals subject to this third audit to be between May 2018 and April 
2019, when 616 projects were approved. The team drew judgmental samples 
totaling 23 projects from data in FDOT's online file system, Statewide 
Environmental Project Tracker (SWEPT). In the context of this report, 
descriptions of environmental documents are consistent with FDOT's 
Project Development and Environment Manual. The FHWA judgmentally 
selected all Type 2 Categorical Exclusions (CEs) (21 projects) and all 
Environmental Assessments (EA) with Findings of No Significant Impacts 
(2 projects). The audit team selected all IARs that were pending for 
approval during the audit period (five projects) to determine if they 
were following protocols for environmental review. The team reviewed 
all project authorization files in the audit period (252 project files) 
downloaded from FHWA Fiscal Management Information System (FMIS) to 
determine if the NEPA certification was completed for these projects 
prior to the authorization. For permanent ER projects, FHWA 
judgmentally sampled 41 projects in SWEPT and FMIS and identified those 
with construction contracts to determine if the NEPA was completed 
prior to authorization and if the NEPA scope was consistent with the 
contract.
    The team submitted a PAIR to FDOT that contained 20 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 team conducted a total of 18 interviews. Interview participants 
included staff from five FDOT District offices, Districts 3 through 7, 
and the FDOT Central Office. The team interviewed FDOT legal, 
financial, planning, and environmental staff.
    The team compared FDOT policies and procedures (including the 
published 2019 Project Development & Environment PD&E Manual) for the 
audit focus areas to the information obtained during interviews and 
project file reviews to determine if FDOT's performance of its MOU 
responsibilities are in accordance with FDOT policies and procedures 
and Federal requirements. 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 team recognizes that FDOT's efforts have included implementing 
the requirements of the MOU by: Processing and approving projects; 
refining policies, procedures, and guidance documents; refining the 
SWEPT tracking system for ``official project files''; training staff; 
implementing a QA/QC Plan; and conducting a self assessment for 
monitoring compliance with the assumed responsibilities. The team found 
evidence of FDOT's continuing efforts to train staff in clarifying the 
roles and responsibilities of FDOT staff, and in educating staff in an 
effort to assure compliance with all of the assigned responsibilities.
    During the third audit, the team identified numerous successful 
practices and one non-compliance observation that FDOT will need to 
address through corrective actions. These results came from a review of 
FDOT procedures, Self Assessment, PAIR responses, project files, and 
interviews with FDOT personnel.
    The FDOT has carried out the responsibilities it has assumed 
consistent with the intent of the MOU and FDOT's application. The team 
finds that FDOT is in substantial compliance with the terms of the MOU. 
By addressing the observations in this report, FDOT will continue to 
assure a successful program.

Successful Practices and Observations

    Successful practices are practices that the team believes are 
positive, and encourages FDOT to consider continuing or expanding those 
programs in the future. The team identified numerous successful 
practices in this report. Observations are items the team would like to 
draw FDOT's attention to, which may improve processes, procedures, and/
or outcomes. The team identified no observations in this report.
    A non-compliance observation is an instance where the 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 team identified one non-compliance 
observation during this third audit.
    The team acknowledges that sharing initial results during the site 
visit closeout and sharing the draft audit report with FDOT provides 
them the opportunity to clarify any observation, as needed, and/or 
begin implementing corrective actions to improve the program. The FHWA 
will also consider actions taken by FDOT to address these observations 
as part of the scope of Audit #4.
    The Audit Report addresses all six MOU program elements as separate 
discussions.

Program Management

Successful Practices
    The team learned through interviews that FDOT has a strong process 
for addressing its Self Assessment corrective actions. The process 
includes creating an action plan, dedicating staff to the plan, and 
identifying timeframes for follow up. The FHWA confirmed in FDOT's Self 
Assessment documentation that FDOT provides a status regarding its 
``opportunities for improvement'' which includes a strong process for 
corrective actions and a corrective action status update section.
    As FDOT's NEPA Assignment Program matures, communication continues 
to improve between FDOT's SMEs, consultants, and FDOT's District staff. 
Through interviews the team confirmed the improved communication. For 
example, some districts invite environmental staff to the District 
Interchange Review Committee meetings to discuss IAR projects early in 
the process. The team encourages FDOT to implement this practice 
statewide. Another example of good communication is the process that 
OEM uses to implement new FHWA guidance. When new guidance is issued 
and FDOT changes its process, it communicates with the districts 
through changes in the manuals, periodic meetings, and training. During 
the audit, the team confirmed broad awareness of how FDOT chose to 
implement the FHWA June 12, 2018, Additional Flexibilities in CEs 
memorandum.

[[Page 10215]]

    The team learned that the enhancements to the SWEPT system continue 
to create efficiencies for the NEPA Assignment Program implementation 
and FDOT continues to dedicate resources to improve SWEPT. Interviewees 
stated that these investments have resulted in more consistent 
documentation from the districts. Additional enhancements to SWEPT 
include cross references to FDOT's PD&E manual and updates to the Type 
1 CE, Type 2 CE, and reevaluation forms. The FDOT OEM now has direct 
responsibility and control for SWEPT updates, which allows for quicker 
revisions to SWEPT to adapt to its changing needs. For example, when 
FDOT implemented its process for documenting legal sufficiency 
determinations, modifications to SWEPT were needed to allow users to 
specify the type of legal sufficiency review being performed, such as 
for an Environmental Impact Statement or a Section 4(f) evaluation. The 
FDOT expeditiously addressed this need and now SWEPT permits users to 
distinguish type of document being reviewed for legal sufficiency.
    The SWEPT is considered by FDOT staff to be a significant program 
level QA/QC tool as it requires input of needed information prior to 
allowing the project to advance further. For example, a project cannot 
advance to FDOT OEM for QA/QC review until the QA/QC review is 
completed at the district level by the Environmental Administrator and 
the Engineering Administrator. Another example of SWEPT's QA/QC control 
is the environmental certification process. The environmental 
certification document is used to document NEPA completion to authorize 
Federal funding in subsequent project phases. The SWEPT will generate 
the environmental certification only after NEPA has been approved.

Quality Assurance/Quality Control

Successful Practice
    During interviews, FDOT staff presented the Electronic Review 
Comments internal review platform as a tool that allows continuous 
engagement among environmental staff and SMEs. This tool allows 
continuous QC as the environmental project is developed.

Legal Sufficiency

    The team's review of FDOT's legal sufficiency program found that 
FDOT has continued to structure the legal sufficiency process for the 
NEPA Assignment Program by having in-house counsel, as well as outside 
counsel with NEPA experience, available. The FDOT has made one legal 
sufficiency Section 4(f) determination during the audit time frame, 
implementing the internal procedures that were previously developed. 
The FDOT's Office of General Counsel (OGC) continues to participate in 
monthly coordination meetings and topic-specific meetings with OEM and 
the districts. It also reviews other environmental documents when 
requested for legal input. There remains close collaboration throughout 
the process amongst and between OGC, OEM, and the district attorneys.
Successful Practice
    The SWEPT has a form that has the capability to document the legal 
sufficiency finding within the system. This tool ensures that proper 
documentation is captured in the project file without the need for 
additional supporting documentation.

Training Program

    The FDOT's training program continues to be exemplary. The FDOT has 
continued to focus resources ensuring staff, other agencies, and 
consultants are adequately trained. In the last year, FDOT again 
trained over 2,000 people in their NEPA process, endangered species, 
traffic analysis, cultural resources, and noise technical areas. 
Through information presented in the FDOT Self Assessment and through 
interviews of FDOT staff, the review team learned of the variety in and 
growth of FDOT's environmental training program.
    The FDOT OEM promotes staff awareness of its Self Assessments 
through multiple notices to districts, a statewide Self Assessment 
kick-off Webinar, and the use of Self Assessment computer-based 
training courses. Through information presented in the FDOT Self 
Assessment and through interviews of FDOT staff, the team learned that 
FDOT is one of the few NEPA assignment States to internally promote its 
self assessments.
Successful Practice
    The team learned through interviews of OEM staff that FDOT has 
increased its environmental training outreach to multiple disciplines. 
The Transportation Symposium has included environmental review training 
on a wide spectrum of topics. This year, the number of environmental 
training courses at the symposium increased by about 50 percent and 
were targeted to individuals from a broad range of disciplines.
    The team also learned that FDOT's YouTube channel includes a 
variety of environmental training Webinars and videos. The FDOT has 
migrated its Web trainings to YouTube so that trainings are available 
and accessible to staff and the public through the MyFDOT channel.

Performance Measures

    Based on information reported in FDOT's 2019 Self Assessment 
Summary Report, FDOT is meeting or exceeding all performance measures.

Documentation and Records Management

    The team reviewed the environmental documentation for 41 permanent 
repair projects to determine if the NEPA was completed prior to 
authorization and if the NEPA scope was consistent with the contract. 
All 41 permanent ER projects were determined compliant.
    The team reviewed all IAR projects (five projects) to determine if 
FDOT was following protocols for environmental review. The projects 
selected for the IAR file review had NEPA documents that were still 
under development; therefore, no conclusions could be drawn from the 
project file review.
Successful Practice
    The FDOT Central Office has procedures that ensure IAR projects 
receive NEPA review as part of the FHWA IAR approval. Systems Planning 
staff have been trained in SWEPT and verify that the NEPA documentation 
supports FHWA's NEPA review expectations for IAR projects.
Non-Compliance Observation #1: Some FDOT Project Files Contain 
Insufficient Documentation To Support the Project Authorization, 
Environmental Analysis, or Decision
    The team reviewed environmental documentation for 21 Type 2 CEs and 
2 EAs to determine if the environmental review met Federal 
requirements. The team found CEs missing U.S. Coast Guard permits and 
Endangered Species Act consultation documentation (two projects). 
Finally, at the time FDOT prepared a Finding of No Significant Impact, 
the review team determined the scope of the EA was inconsistent with 
the State Transportation Improvement Program.
    The team also reviewed 252 Project Authorization files to determine 
if the NEPA certification was completed for these projects prior to the 
authorization. The team found that some Project Authorizations did not 
have documentation verifying that NEPA was completed (18 projects).
    The team's observations on the environmental documentation and on 
the Project Authorization files were

[[Page 10216]]

shared with FDOT for its consideration and initial responses. The team 
received responses from FDOT either resolving the observation or 
verifying missing documentation and/or procedural deficiencies. While 
these projects were found non-compliant at the time of the review, the 
missing documents have subsequently been uploaded by FDOT or FDOT 
committed to implementing a process improvement to address these 
concerns.
Update from 2017 Audit #1, Non-Compliance Observation #1 and 2018 Audit 
#2, Non-Compliance Observation #1: Some FDOT Project Files Contain 
Insufficient Documentation To Support the Environmental Analysis or 
Decision
    The FHWA reported a non-compliance observation related to some FDOT 
project files that lacked documentation to support the environmental 
analysis or decision as part of Audit #1 and Audit #2. The FDOT and 
FHWA have productively worked together to resolve documentation issues 
from these previous audits. The FDOT continues to implement process 
improvements to address noted procedural deficiencies. These 
improvements will be considered during the next audit.
    The FHWA and FDOT have also been working together through previous 
audits to mutually understand FDOT's implementation of reasonable 
assurance that the project impacts would not be significant when full 
compliance for a project is not possible by the time the NEPA decision 
has been prepared. Through the interviews and project file reviews, the 
team received clarification from FDOT regarding the differences in the 
applicability of standard specifications and special provisions when 
addressing endangered species impacts and consultation, and how these 
tools support reasonable assurances of no significant impacts to 
support the NEPA decision. In addition, the team learned that FDOT 
provided training and clarifications internally to ensure reasonable 
assurance is appropriately applied during NEPA document development.

Finalizing This Report

    The FHWA provided a draft of the audit report to FDOT for a 14-day 
review and comment period. The team considered FDOT's comments in this 
draft audit report. The FHWA is publishing this 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)(2)(B). Subsequently, FHWA will 
publish the final audit report in the Federal Register.
    The FHWA will consider the results of this audit in preparing the 
scope of the next annual audit. The next audit report will include a 
summary that describes the status of FDOT's corrective and other 
actions taken in response to this audit's conclusions.

[FR Doc. 2020-03465 Filed 2-20-20; 8:45 am]
 BILLING CODE 4910-22-P