[Federal Register Volume 85, Number 117 (Wednesday, June 17, 2020)]
[Notices]
[Pages 36657-36661]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-13005]


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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.

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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

[[Page 36658]]

mandates annual audits during each of the first four years to ensure 
the State's compliance with program requirements. This notice makes 
available the final report of the Florida Department of 
Transportation's (FDOT) third audit under the program.

FOR FURTHER INFORMATION CONTACT: Ms. Marisel Lopez Cruz, Office of 
Project Development and Environmental Review, (407) 867-6402, 
[email protected], or Mr. David Sett, Office of the Chief 
Counsel, (404) 562-3676, [email protected], 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 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 four years of State 
participation and, after the fourth year, monitor compliance. The 
results of each audit must be made available for public comment. This 
notice finalizes the findings of the third audit report on FDOT 
participation in the program. A draft version of this report was 
published in the Federal Register on February 21, 2020, at 85 FR 10212, 
and was available for public review and comments. The FHWA received no 
responses to the Federal Register Notice during the public comment 
period for the draft report.

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

Nicole R. Nason,
Administrator, Federal Highway Administration.

Final: Surface Transportation Project Delivery Program, 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 the 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 August 2019 PAIR responses and

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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 PD&E 
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 FDOT was 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 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 provided 
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.
    The team learned that the enhancements to the SWEPT system continue 
to create efficiencies for the NEPA Assignment Program

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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 shared with FDOT for its 
consideration and initial responses. The team received responses from 
FDOT either resolving the observation or verifying missing

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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 received no responses to the Federal Register Notice 
during the public comment period for the draft report. This report is a 
finalized version of the draft report without substantive changes.
    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. 2020-13005 Filed 6-16-20; 8:45 am]
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