[Federal Register Volume 87, Number 239 (Wednesday, December 14, 2022)]
[Notices]
[Pages 76535-76538]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-27057]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

[FHWA Docket No. FHWA-2020-0025]


Surface Transportation Project Delivery Program; Florida DOT 
Audit #4 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 fourth and final 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 fourth and final audit report for FDOT.

DATES: Comments must be received on or before January 13, 2023.

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 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, 400 W. Washington Street, Room 4200, 
Orlando, FL 32801, or Mr. Patrick Smith, Office of the Chief Counsel, 
(202) 366-1345, [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 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 third audit report 
was published in the Federal Register on June 17, 2020, at 85 FR 36657. 
This notice announces the availability of the fourth and final audit 
report for FDOT and solicits comment on same.
    Authority: Section 1313 of Public Law 112-141; Section 6005 of 
Public Law 109-59; 23 U.S.C. 327; 23 CFR 773.

Stepanie Pollack,
Acting Administrator, Federal Highway Administration.

Surface Transportation Project Delivery Program, FHWA Audit #4 of the 
Florida Department of Transportation, May 2019 to April 2020

Executive Summary

    This is a report of the fourth and final 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 2020 to conduct an audit of 
FDOT's performance according to the terms of the MOU. The team held 
internal meetings and 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 June 
26 and July 28, 2020. The team conducted virtual interviews with FDOT, 
resource agencies, and prepared preliminary audit results from 
September 21-24, 2020. The team presented these preliminary 
observations to FDOT OEM leadership on September 25, 2020.
    While FDOT continues to develop, revise, and implement procedures 
and processes required to carry out the NEPA Assignment Program, it is 
FHWA's expectation that documentation to support a project's decision 
will be included in the Statewide Environmental Project Tracker (SWEPT) 
system prior to project close out. By addressing the observation in 
this report, FDOT will continue to assure a successful program.

[[Page 76536]]

    Overall, the team found that FDOT remains committed to delivering a 
successful NEPA Program. This report describes numerous successful 
practices, no 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 the one non-compliance observation that 
requires FDOT to take corrective action. The report concludes with the 
status of FHWA's non-compliance observations from the first, second, 
and third 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 fourth audit in Florida and 
includes a summary discussion that describes progress since the last 
audit. This audit is the last of the required audits.

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 2020 PAIR responses and FDOT's August 2020 Self Assessment 
Summary Report, also informed this review. In addition, the team 
interviewed FDOT and resource and regulatory agency staff 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) 
Environmental Permits; (2) Process Improvements; and, (3) Project 
Authorizations.
    The team defined the timeframe for highway project environmental 
approvals subject to this fourth audit to be between May 2019 and April 
2020, when 635 projects were approved. The team drew judgmental samples 
totaling 110 projects from data in FDOT's online file system, 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 reevaluations of Environmental Impact 
Statements (EIS) with Records of Decision (ROD) (3 projects) and 
Environmental Assessments (EA) with Findings of No Significant Impacts 
(FONSI) (8 projects). The team selected a random sample of 61 Type 1 
Categorical Exclusions (CEs), 16 Type 2 CEs, and 22 Type 2 CE 
Reevaluations, for a total of 110 projects in the sample. The team 
reviewed all fiscal project authorization files in the audit period 
(422 project files) downloaded from FHWA Fiscal Management Information 
System to determine if the NEPA certification was completed for these 
projects prior to the authorization. Additionally, for all projects 
with a NEPA approval date within the audit year (316 projects), SWEPT 
was used to evaluate the supporting environmental information. The 
remaining 106 projects used the FDOT Project Approvals Reports to 
provide a cursory review of the environmental information.
    The team submitted a PAIR to FDOT that contained 25 questions 
covering all 6 NEPA Assignment Program elements. The FDOT responses to 
the PAIR were used to develop questions for the virtual interviews with 
FDOT staff.
    The team conducted a total of 32 interviews. Interview participants 
included staff from all seven FDOT District offices and the FDOT 
Central Office. The team interviewed FDOT legal and environmental 
staff. The team also interviewed representatives from the following 
resource agencies: National Oceanic and Atmospheric Administration--
National Marine Fisheries Service; the U.S. Coast Guard; the U.S. Fish 
and Wildlife Service; U.S. Army Corps of Engineers; and the State 
Historic Preservation Officer from the Florida Department of State, 
Division of Historic Resources.
    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 fourth audit, the team identified numerous successful 
practices, no observations, and one non-compliance observation that 
FDOT will need to address through corrective actions.
    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 non-compliance observation in this report, FDOT will 
continue to assure a successful program.

[[Page 76537]]

Successful Practices and Observations

    Successful practices are practices that the team believes are 
positive, and encourages FDOT to continue or expand 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 fourth audit.
    The team acknowledges that sharing initial results during the 
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 Audit Report addresses all six MOU program elements as separate 
discussions.

Program Management

Successful Practices

    The FDOT has continued and expanded its working relationships with 
the resource agencies. The FDOT has been meeting early and often with 
some resource agencies to discuss ongoing and future projects. This 
enhanced communication minimizes delays in project delivery and 
permitting processes. The Efficient Transportation Decision Making 
process was in place prior to NEPA Assignment and this tool continues 
to foster good relationships between FDOT and the resource agencies. 
Districts are beginning to conduct periodic Environmental Technical 
Advisory Team (ETAT) Webinars instead of annual ETAT meetings to 
discuss upcoming projects. Additionally, federally funded positions 
dedicated to FDOT projects reduce delays in project delivery.
    The SWEPT is a fundamental component of FDOT's NEPA Assignment 
success. The SWEPT continues to be a critical and flexible tool in 
implementing the NEPA Assignment program responsibilities. The review 
team learned through the interviews that as FDOT users have become more 
familiar with the SWEPT system, they have praised its usefulness in 
streamlining the NEPA documentation process. The SWEPT provides 
standards for documentation in templates, provides a consistent 
interface, and facilitates the creation of the administrative record. 
Users also have an opportunity to provide input to improve SWEPT's 
ability to track project progression. The SWEPT has continued to evolve 
and now used to support the permitting process for some projects.
    The FDOT's internal communication is robust and effective. As 
FDOT's NEPA Assignment Program matures, communication and relationships 
continue to improve between FDOT's OEM Staff, District Staff, and 
consultants. Communications at the program level between OEM and 
District staff have become a regular part of their day-to-day 
operations. The OEM engagement through the Project Delivery 
Coordinators has helped save time on projects and improved consistency. 
Monthly meetings within the Districts among environmental staff and 
permit coordinators has improved project development and delivery. One 
District holds quarterly meetings between permitting, environmental 
management, and construction offices to discuss outstanding items and 
issues.
    The FDOT Districts accelerate NEPA project delivery through 
enhanced scoping. The review team learned through interviews that two 
Districts have staff complete surveys and assessments before the NEPA 
process begins to accelerate project delivery. Once the NEPA process 
begins, the District consultants are then able to complete the NEPA 
phase in a shorter timeframe, without having to wait on seasonal 
surveys, such as those required for some species, and other information 
that is needed for the NEPA decisions. This early information gathering 
is an example of Planning and Environment Linkages to allow for 
accelerated NEPA project delivery and reduced costs for consultant 
services in the environmental phase.

Quality Assurance/Quality Control

Successful Practice

    The SWEPT provides a QA/QC advantage. The review team learned 
through interviews that SWEPT provides additional environmental 
document quality control for the project file. The use of templates in 
SWEPT and the SWEPT system validation control point prevent project 
advancement and approval until required documents are uploaded and 
serve as additional QA/QC tools.

Legal Sufficiency

Successful Practices

    The FDOT has an attorney dedicated to Section 4(f) reviews. Section 
4(f) is a complex law which is challenging to master and implement. 
This practice allows FDOT counsel to provide consistent advice, develop 
subject matter expertise, and allows for streamlined reviews ensuring 
the analysis meets the legal sufficiency requirements in accordance 
with 23 CFR part 774.
    Counsel has been fully integrated into the NEPA decisionmaking 
process. The FDOT Districts routinely contact counsel with questions 
throughout the NEPA development process. Consulting early and often 
with counsel has not only expedited the NEPA decisionmaking process but 
also translated into counsel being invited to participate in other 
phases of project development and policy matters.

Training Program

    The FDOT has continued to focus resources ensuring staff, other 
agencies, and consultants are adequately trained. In the last year, 
FDOT again trained more than 2,300 staff, consultants, resource 
agencies and local agencies in over 100 courses on topics such as 
Section 4(f), Permits, Wetlands, and the PD&E Manual. Through 
information presented in the FDOT Self Assessment and the interviews, 
the review team learned of the variety in, and growth of, FDOT's 
environmental training program.

Successful Practice

    The FDOT has a strong onboarding process when new employees join 
the OEM. The OEM initiated a 6-month pilot program to conduct weekly 
sessions led by technical experts. These onboarding mentoring sessions 
with subject matter experts are being recorded and made available for 
other FDOT staff to watch on demand.

Performance Measures

    Based on information reported in FDOT's 2020 Self Assessment 
Summary Report, FDOT met, exceeded, or was close to achieving all 
targets for the review period.

Documentation and Records Management

    The team reviewed environmental documentation for 61 Type 1 CEs, 16 
Type 2 CEs, and 33 Reevaluations which included RODs, FONSIs, and

[[Page 76538]]

Type 2 CEs to determine if the environmental review met Federal 
requirements. The team also reviewed 422 fiscal project authorization 
files to determine if NEPA was completed for these projects prior to 
the authorization.

Non-Compliance Observation #1: Some FDOT Project Files Contain 
Insufficient Documentation To Support the Project Authorization, 
Environmental Analysis, or Environmental Decision

    The team found some CEs that did not have a Statewide 
Transportation Improvement Program (STIP) page or had an outdated STIP 
page (10 projects) in their documentation for fiscal constraint. The 
team also found that some fiscal project authorizations did not have 
documentation verifying that NEPA was completed (11 projects). FDOT has 
already updated the SWEPT System by uploading any missing 
documentation. In addition, FDOT committed to making process 
improvements to address any remaining concerns.
    While the SWEPT system has validation control points in place, 
there are still opportunities for additional enhancements regarding 
quality assurance to ensure these documents are included in all project 
files. It is FHWA's expectation that documentation to support a 
project's decision will be included in the SWEPT system prior to 
project close out.

Update From Previous Audit Findings

    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, Audit #2, and Audit #3. Also, 
as part of Audit #3, FHWA identified the lack of documentation to 
support the project authorization. The FDOT and FHWA have productively 
worked together to resolve documentation issues from these previous 
audits. The FDOT implemented several process improvements to address 
noted procedural deficiencies.

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

    To address the 2017 and 2018 findings, FDOT implemented 
enhancements to SWEPT including revisions to the Type 1 CE checklist, 
the Type 2 CE form, and the reevaluation form. They added STIP/TIP 
planning consistency uploading instructions, added validation for data 
within the Type 1 CE checklist for ROW, wetlands, floodplains, and 
waterways, added an attachment point for the project commitment record 
in the Type 1 CE checklist, allowed multiple attachments for Section 7 
ESA concurrence letters, integrated Section 4(f) approvals for 
applicable classes of action, and developed a spreadsheet tool for the 
project managers to verify which documents need to be uploaded to the 
project file. The FDOT also updated the PD&E manual, conducted training 
for their staff on the SWEPT and PD&E manual enhancements and on the 
areas of noted deficiencies. The FDOT also developed computer based 
training in some of these areas for future use.

2019 Audit #3, Non-Compliance Observation #1: Some FDOT Project Files 
Contain Insufficient Documentation To Support the Project 
Authorization, Environmental Analysis or Decision

    To address the 2019 findings, FDOT implemented enhancements to 
SWEPT by adding validation for data within the Type 1 CE checklist for 
bridge permits. The FDOT also updated the PD&E manual, conducted 
training for their staff on the SWEPT, and made PD&E manual 
enhancements in the noted deficiency areas. The FDOT also developed 
computer based training for class of actions, CEs, and environmental 
assessments.
    The improvements made in response to the 2017, 2018, and 2019 
observations were assessed during this final audit and are considered 
sufficient to address the issues underlying the non-compliance 
observations in those audits.

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.

[FR Doc. 2022-27057 Filed 12-13-22; 8:45 am]
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