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Observation #4: Training Needs 

Assessment 

Considering ongoing staff turnover, as 

discussed in Observation #3, FHWA 

encourages DOT&PF to conduct a 

detailed statewide training needs 

assessment of new environmental staff. 

This will help DOT&PF allocate 

resources more efficiently to identify 

skill and knowledge gaps. The FHWA 

also encourages DOT&PF to explore 

cross training opportunities with other 

agencies (e.g.: SHPO, BLM, USFS) and 

engage them in development of their 

annual training plan. 

Performance Measures 

The FHWA and DOT&PF mutually 

established a set of performance 

measures to evaluate DOT&PF’s 

performance in assuming NEPA 

Assignment Program responsibilities. 

The DOT&PF continues to collect, 

maintain, and develop data towards 

monitoring its performance as required 

by Section 10.1.3 of the MOU. The audit 

team noted the following successful 

practice related to Performance 

Measures. 

Successful Practice #3: Relationships 

With Agencies 

The audit team found that DOT&PF 

has very good and positive relationships 

with BLM, USFS, and SHPO. The 

FHWA has interviewed resource 

agencies in previous audits and found 

that overall, they had good working 

relationships with DOT&PF. The audit 

team decided to interview staff from 

BLM and the USFS during Audit #4 

since Federal Land Management 

Agencies had not been interviewed in 

past audits and they were included in 

DOT&PF’s May 2020 agency poll. The 

audit team also chose to interview the 

SHPO since they had not been 

interviewed since Audit #1. The 

individuals interviewed from these 

three agencies indicated that overall, 

their working relationships with 

DOT&PF were very good and positive. 

This information correlates well with 

the overwhelmingly positive responses 

DOT&PF received to their agency poll. 

Legal Sufficiency 

Since 2017, the same attorney from 

the Alaska Attorney General’s Office, 

Transportation Section, has been 

assigned to the NEPA Assignment 

Program. The assigned attorney has 

significant experience with Federal-aid 

highway projects and the Federal 

environmental process. The attorney 

works directly with DOT&PF staff on 

project environmental documents. 

Based on the interviews, the attorney 

becomes involved early in project 

development, normally reviewing a 

NEPA document before receiving a 

formal request for a legal sufficiency 

review. During the audit period, the 

attorney did not review an EIS or a 

Section 4(f) evaluation requiring a legal 

sufficiency review. Although a legal 

sufficiency review is not required for 

EAs, the attorney reviewed two EAs 

during the audit period. The attorney 

reported that the review process for an 

EA is like the review process for an EIS. 

Department of Law Management 

stated during the interviews that while 

one attorney is currently assigned to the 

program, should workload increase 

significantly another attorney could be 

assigned to NEPA work or litigation, 

likely through the utilization of outside 

counsel per 23 U.S.C. 327(a)(2)(G). 

The audit team finds that DOT&PF 

meets the legal sufficiency 

determination and staffing requirements 

set forth in the DOT&PF Environmental 

Procedures Manual. 

Status of Observations From Audit #3 

Report (April 2020) 

This section describes the actions 

DOT&PF has taken in response to 

observations made during the third 

audit. 

Observation #1: Self-Assessment 

Procedures 

The DOT&PF’s 2018 NEPA 

Assignment Program Self-Assessment 

Procedures require that SEO develop the 

preliminary and final Self-Assessment 

Report through coordination with, and 

input from, the REMs. During Audit #3 

interviews, the audit team found that 

DOT&PF did not develop the January 

2020 Self-Assessment Report in 

accordance with their procedures, nor 

distribute the final report to the regions. 

For Audit #4, DOT&PF indicated in 

their responses to the PAIR that the 

draft December 2020 Self-assessment 

was sent to the REMs for review and 

comment according to their procedures. 

Comments were received and addressed 

in the final Self-Assessment Report, 

which was then shared with the regions. 

Observation #2: Assessing Resource 

Agency Communication 

Section 10.2.1 C. of the MOU requires 

DOT&PF to ‘‘Assess change in 

communication among DOT&PF, 

Federal and State agencies, and the 

public resulting from assumption of 

responsibilities under this MOU’’. The 

MOU allows DOT&PF to determine the 

method it will use to assess this change. 

The DOT&PF selected to use an annual 

resource agency poll. The DOT&PF 

identified this measure in its DOT&PF 

NEPA Assignment Program Performance 

Measures document located on its 

website. At the time of Audit #3, 

DOT&PF had not yet used a resource 

agency poll, and FHWA recommended 

that DOT&PF consider changing the 

method for reporting this measure. 

In May 2020 (prior to Audit #4), 

DOT&PF conducted an agency survey to 

assess changes in communication 

among DOT&PF, State, and Federal 

resource agencies. As described in 

DOT&PF’s Self-Assessment Report, the 

survey consisted of six questions 

distributed via an online platform to a 

representative cross section of State and 

Federal resource Agency staff. Twentyfour responses were received from 11 

different resource agencies. The 

DOT&PF asked the question: ‘‘Has the 

level of communication improved, 

declined, or remained the same since 

the MOU became effective?’’ Eleven of 

the responses indicated that there had 

been an improvement in 

communication and the remaining 

responses indicated there had been no 

change. 

[FR Doc. 2023–19703 Filed 9–12–23; 8:45 am] 

BILLING CODE 4910–22–P 

DEPARTMENT OF TRANSPORTATION 

Federal Highway Administration 

[FHWA Docket No. FHWA–2021–0020] 

Surface Transportation Project 

Delivery Program; Arizona Department 

of Transportation FHWA Audit Report 

AGENCY: Federal Highway 

Administration (FHWA), U.S. 

Department of Transportation (DOT). 

ACTION: Notice. 

SUMMARY: The Moving Ahead for 

Progress in the 21st Century Act 

established the Surface Transportation 

Project Delivery Program that allows a 

State to assume FHWA’s environmental 

responsibilities for environmental 

review, consultation, and compliance 

under the National Environmental 

Policy Act (NEPA) for Federal highway 

projects. When a State assumes these 

Federal responsibilities, the State 

becomes solely responsible and liable 

for carrying out the responsibilities it 

has assumed, in lieu of FHWA. This 

program mandates annual audits during 

each of the first 4 years of State 

participation to ensure compliance with 

program requirements. This is the 

second audit of the Arizona Department 

of Transportation’s (ADOT) performance 

of its responsibilities under the Surface 

Transportation Project Delivery Program 

(NEPA Assignment Program). This 


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notice makes available the final second 

audit report for ADOT. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Colleen Vaughn, Office of Project 

Development and Environmental 

Review, (202) 633–0356, 

colleen.vaughn@dot.gov, Federal 

Highway Administration, U.S. 

Department of Transportation, 1200 

New Jersey Avenue SE, Washington, DC 

20590, or Ms. Michelle Andotra, Office 

of the Chief Counsel, (404) 562–3679, 

michelle.andotra@dot.gov, 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 United 

States Code (U.S.C.) 327, commonly 

known as the NEPA Assignment 

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 liable for carrying out 

the responsibilities it has assumed, in 

lieu of FHWA. The ADOT published its 

application for NEPA assumption on 

June 29, 2018, and solicited public 

comment. After considering public 

comments, ADOT submitted its 

application to FHWA on November 16, 

2018. The application served as the 

basis for developing a memorandum of 

understanding (MOU) that identifies the 

responsibilities and obligations that 

ADOT would assume. The FHWA 

published a notice of the draft MOU in 

the Federal Register on February 11, 

2019, at 84 FR 3275, with a 30-day 

comment period to solicit the views of 

the public and Federal agencies. After 

the close of the comment period, FHWA 

and ADOT considered comments and 

proceeded to execute the MOU. 

Effective April 16, 2019, ADOT assumed 

FHWA’s responsibilities under NEPA, 

and the responsibilities for NEPArelated Federal environmental laws 

described in the MOU. 

Section 327(g) of Title 23, U.S.C., 

requires the Secretary to conduct annual 

audits to ensure compliance with the 

MOU during each of the first 4 years of 

State participation and, after the fourth 

year, monitor compliance. The FHWA 

must make the results of each audit 

available for public comment. The 

FHWA published a notice in the 

Federal Register at 87 FR 66357 on 

November 03, 2022, soliciting 

comments for 30 days pursuant to 23 

U.S.C. 327(g). The FHWA received 

comments on the draft report from the 

American Road & Transportation 

Builders Association (ARTBA). The 

ARTBA’s comments were supportive of 

the Surface Transportation Project 

Delivery Program and did not relate 

specifically to the audit. This notice 

makes available the final report of 

ADOT’s second audit under the 

program. The final audit report is 

available for download at 

www.regulations.gov under FHWA– 

2021–0020. 

Authority: Section 1313 of Public Law 

112–141; Section 6005 of Public Law 

109–59; 23 U.S.C. 327; 23 CFR 773. 

Shailen P. Bhatt, 

Administrator, Federal Highway 

Administration. 

Surface Transportation Project Delivery 

Program, FHWA Audit #2 of the Arizona 

Department of Transportation 

Executive Summary 

This report summarizes the results of the 

Federal Highway Administration’s second 

audit of the Arizona Department of 

Transportation’s (ADOT) assumption of 

National Environmental Policy Act (NEPA) 

responsibilities under the Surface 

Transportation Project Delivery Program. 

Under the authority of Title 23 United States 

Code (U.S.C.) Section 327, ADOT and the 

Federal Highway Administration (FHWA) 

executed a memorandum of understanding 

(MOU) on April 16, 2019, to memorialize 

ADOT’s NEPA responsibilities and liabilities 

for Federal-aid highway projects and other 

related environmental reviews for highway 

projects in Arizona. This 23 U.S.C. 327 MOU 

covers environmental review responsibilities 

for projects that require the preparation of 

environmental assessments (EA), 

environmental impact statements (EIS), and 

non-designated individual categorical 

exclusions (CE). A separate MOU between 

FHWA and ADOT, pursuant to 23 U.S.C. 326, 

authorizes environmental review 

responsibilities for other CEs. This audit does 

not cover the CE responsibilities and projects 

assigned to ADOT under the 23 U.S.C. 326 

MOU. 

The FHWA conducted an audit of ADOT’s 

performance according to the terms of the 

MOU from March 29 to April 1, 2021. Prior 

to the audit, the FHWA audit team reviewed 

ADOT’s environmental manuals and 

procedures, NEPA project files, ADOT’s 

response to FHWA’s pre-audit information 

request (PAIR), and ADOT’s NEPA 

Assignment Self-Assessment Report. During 

the March 2021 audit, the audit team 

conducted interviews with staff from ADOT 

Environmental Planning (EP) and the 

Arizona Attorney General’s Office (AGO) and 

prepared preliminary audit results. The audit 

team presented these preliminary results to 

ADOT EP leadership on April 1, 2021. The 

audit team conducted a completely virtual 

site visit rather than its traditional onsite 

visit due to national health emergency travel 

restrictions. 

Overall, the audit team found that ADOT 

has carried out the responsibilities it has 

assumed consistent with the intent of the 

MOU and ADOT’s application. The ADOT 

continues to develop, revise, and implement 

procedures and processes required to deliver 

its NEPA Assignment Program. This report 

describes several observations and successful 

practices. Through this report, FHWA is 

notifying ADOT of two non-compliance 

observations that require ADOT to take 

corrective action. By addressing the 

observations in this report, ADOT will 

continue to assure successful program 

assignment. 

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 second audit in 

Arizona and ADOT’s progress towards 

meeting the program review objectives 

identified in the MOU. Following this audit, 

FHWA will conduct two additional annual 

NEPA Assignment Program audits in 

Arizona. 

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). The definition of an audit 

is one where an independent, unbiased body 

makes an official and careful examination 

and verification of accounts and records, 

especially of financial accounts. Auditors 

who have special training with regard to 

accounts or financial records may follow a 

prescribed process or methodology in 

conducting an audit of those processes or 

methods. The FHWA considers its 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 ADOT’s 

assumption of environmental 

responsibilities. 

The audit team consisted of NEPA subject 

matter experts from FHWA Headquarters, 

Resource Center, Office of the Chief Counsel, 

and staff from FHWA’s Arizona Division. 

This audit is an unbiased official action taken 

by FHWA, which included an audit team of 

diverse composition, and followed an 

established process for developing the review 

report and publishing it in the Federal 

Register. 

The audit team reviewed six NEPA 

Assignment Program elements: program 


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management; documentation and records 

management; quality assurance/quality 

control (QA/QC); performance measures; 

legal sufficiency; and training. The audit 

team considered two additional focus areas 

for this review: the procedures contained in 

40 CFR part 93 for project-level conformity 

and the procedures contained in Section 4(f) 

of the U.S. Department of Transportation Act 

of 1966, codified in 49 U.S.C. 303 and 23 

U.S.C. 138 (otherwise known as Section 4(f)). 

This report concludes with a status update 

for FHWA’s observations from the first audit 

report. 

The audit team conducted a careful 

examination of ADOT policies, guidance, and 

manuals pertaining to NEPA responsibilities, 

as well as a representative sample of ADOT’s 

project files. Other documents, such as 

ADOT’s PAIR responses and ADOT’s SelfAssessment Report, also informed this 

review. In addition, the audit team 

interviewed ADOT staff via videoconference. 

The timeframe defined for this second 

audit includes highway project 

environmental approvals completed between 

January 1 to December 31, 2020. During this 

timeframe, ADOT completed NEPA 

approvals and documented NEPA decision 

points for nine projects. Due to the small 

sample size, the audit team reviewed all nine 

projects. This consisted of three EAs with a 

Finding of No Significant Impact, two EAs 

initiated with scoping completed, three EA 

re-evaluations, and one individual CE. 

The PAIR submitted to ADOT contained 24 

questions covering all 6 NEPA Assignment 

Program elements. The audit team developed 

specific follow-up questions for the 

interviews with ADOT staff based on ADOT 

responses to the PAIR. The audit team 

conducted a total of 13 interviews. Interview 

participants included staff from ADOT EP 

and the Arizona AGO. 

The audit team compared ADOT manuals 

and procedures to the information obtained 

during interviews and project file reviews to 

determine if ADOT’s performance of its MOU 

responsibilities is in accordance with ADOT 

procedures and Federal requirements. The 

audit team documented individual 

observations and successful practices during 

the interviews and reviews and combined 

these under the six NEPA Assignment 

Program elements. The audit results are 

described below by program element. 

Overall Audit Opinion 

The audit team found ADOT has carried 

out the responsibilities it has assumed 

consistent with the intent of the MOU and 

ADOT’s application. The FHWA is notifying 

ADOT of two non-compliance observations 

that require ADOT to take corrective action. 

By addressing the observations cited in this 

report, ADOT will continue to ensure a 

successful program. 

Successful Practices and Observations 

Successful practices are practices that the 

team believes are positive and encourages 

ADOT to consider continuing or expanding 

those programs in the future. The audit team 

identified numerous successful practices in 

this report. 

Observations are items the audit team 

would like to draw ADOT’s attention to, 

which may improve processes, procedures, 

and/or outcomes. The team identified four 

observations in this report. 

Non-compliance observations are instances 

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. Noncompliance 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 two 

non-compliance observations in this report. 

The audit team shared initial results during 

the closeout meeting with ADOT and shared 

the draft audit report with ADOT to provide 

them the opportunity to clarify any 

observation, as needed, and/or begin 

implementing corrective actions to improve 

the program. The FHWA will consider 

actions taken by ADOT to address these 

observations as part of the scope of the third 

audit. 

Program Management 

Successful Practice #1 

The ADOT EP continues to maintain 

several guidance manuals for implementing 

NEPA Assignment and evaluating 

environmental resources. These manuals are 

readily available online at ADOT’s 

environmental website. The ADOT 

continuously updates its manuals and 

ensures staff are informed of updates. Staff 

noted the benefit of utilizing the guidance 

manuals and having better defined 

procedures. 

Successful Practice #2 

During interviews with staff, the audit 

team learned that ADOT EP has increased 

internal communication and coordination by 

holding monthly meetings with the NEPA 

Assignment Program managers and technical 

area program managers, and by holding 

biweekly meetings with program managers. 

The ADOT EP’s internal communication 

efforts also included emails and informal 

staff interactions. 

Successful Practice #3 

During interviews with staff, the audit 

team learned that staff felt a benefit of NEPA 

Assignment has been an increased sense of 

ownership and responsibility for the program 

and decisions. Program managers indicated 

that staff at all levels within ADOT had 

become more engaged in the NEPA 

Assignment Program. 

Observations 

Observation #1: Deficiencies and Gaps in 

ADOT’s Manuals and Procedures 

The audit team reviewed ADOT’s manuals 

and procedures as part of the evaluation of 

ADOT’s performance of its MOU 

responsibilities. Section 4.2.4 of the MOU 

specifies that ADOT must implement 

procedures to support appropriate 

environmental analysis and decisionmaking 

under NEPA and associated laws and 

regulations. The audit team identified the 

following deficiencies in ADOT’s manuals 

and procedures which may result in 

incomplete project documentation or 

analysis and increase the risk for noncompliance: 

• The ADOT CE Checklist Manual and the 

ADOT EA/EIS Manual contain different 

procedures for completing re-evaluations and 

the process for re-evaluations for EA/EISs is 

not well-defined. During interviews, staff 

described variations in the procedures for 

completing and documenting re-evaluations. 

• The ADOT Section 4(f) Manual, 

documentation forms, and desk reference/ 

matrix contain information inconsistent with 

FHWA guidance and regulation, as identified 

below: 

Æ The manual, desk reference/matrix, 

‘‘Section 4(f) Applicability/Exceptions’’ form, 

and ‘‘No Section 4(f) Property/Use’’ form 

incorrectly state that the exception for 

archaeological sites applies only to Section 

106 adverse effect findings. The 

archaeological exception can be applied to 

both no adverse effect and adverse effect 

findings. Moreover, resources resulting in 

either finding must still be evaluated for 

Section 4(f) applicability and potential uses. 

The incorrect information in ADOT’s 

materials creates the risk of inadequately 

evaluating archaeological sites with a finding 

of no adverse effect for Section 4(f) purposes, 

and not consulting with the official with 

jurisdiction when the archaeological 

exception is applied. 

Æ The manual, desk reference/matrix, and 

‘‘No Section 4(f) Property/Use’’ form 

incorrectly state that a Section 106 no 

adverse effect finding equates to a Section 

4(f) ‘‘no use.’’ While it is possible for a 

Section 4(f) ‘‘no use’’ to apply in cases of no 

adverse effect findings, this is not automatic, 

and resources should be evaluated on an 

individual basis to determine potential uses. 

The project file should include information 

demonstrating that a ‘‘no use’’ determination 

is appropriate and the factors that support 

that decision. The incorrect information in 

ADOT’s materials creates the risk of 

inadequately evaluating all eligible historic 

properties for potential uses. 

Æ The ‘‘Section 4(f) De Minimis Impact on 

Public Parks, Recreational Areas and 

Wildlife/Waterfowl Refuges’’ form 

incorrectly indicates that meeting minutes 

alone can be used to document written 

concurrence from the official with 

jurisdiction. Meeting minutes can be used to 

demonstrate that communicating potential 

impacts and coordinating with the official 

with jurisdiction occurred, but written 

concurrence should be documented through 

formal correspondence (e.g., signed letter or 

form, or email responses). 

Documentation and Records Management 

Successful Practice #4 

During interviews, staff indicated 

increased efforts to coordinate with the 

ADOT Communications Office and the 

ADOT Civil Rights Office on public 

involvement activities conducted for 

projects. 

Successful Practice #5 

The ADOT continues to implement its 

standard folder structure for consistent 


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record keeping and assistance with QA 

reviews. Staff commented that the standard 

folder structure was a helpful tool and 

improved the process for maintaining project 

files. 

Successful Practice #6 

The ADOT EP has developed standard 

templates (checklists, forms) for various 

decision points and processes. Staff noted 

that using the standard templates during the 

environmental review process has increased 

the consistency of project documentation. 

Observations 

Section 4.2.4 of the MOU specifies that 

ADOT must implement procedures to 

support appropriate environmental analysis 

and decisionmaking under NEPA and 

associated laws and regulations. The audit 

team identified several inconsistencies 

between ADOT’s procedures for 

documenting project decisions (as identified 

in the ADOT CE Checklist Manual, ADOT 

EA/EIS Manual, ADOT Section 4(f) Manual, 

ADOT QA/QC Plan, and ADOT Project 

Development Procedures Manual) and the 

project file documentation provided. The 

ADOT was provided an opportunity during 

the audit, and during their opportunity to 

comment on the draft audit report, to clarify 

inconsistencies identified by the audit team 

and provide additional information regarding 

the project documentation. The ADOT 

provided explanations to the audit team’s 

questions and indicated where specific 

information was located in the project files 

but did not submit additional documents or 

files. The FHWA did not consider this 

supplemental information to be sufficient for 

four audited projects. 

Non-Compliance Observation #1: 

Deficiencies in Section 4(f) Evaluation of 

Archaeological resources 

The ADOT’s Section 4(f) Manual (Sections 

3.3 and 3.4.2) and FHWA regulations, 

policies, and guidance provide information 

on determining the applicability of Section 

4(f) to archaeological resources and 

determining if there is an exception or 

potential use. ADOT’s Section 4(f) Manual 

(Sections 5.2 and 5.3) specifies procedures 

for documenting Section 4(f) uses of 

archaeological sites, exceptions per 23 CFR 

774.13(b), and ‘‘no use’’ determinations. 

During Audit #1, FHWA identified 

inconsistencies with ADOT’s Section 4(f) 

evaluation and documentation of 

archaeological sites which were included as 

an observation in the Audit #1 Report. The 

audit team observed similar inconsistencies 

during the project file reviews for this audit 

and identified the following procedural 

deficiencies relating to ADOT’s Section 4(f) 

evaluation and documentation: 

• One project file included a Section 106 

adverse effect determination for two 

archaeological sites, indicating the presence 

of Section 4(f) resources and potential 

Section 4(f) uses. The consultation letter sent 

to the Arizona State Historic Preservation 

Officer did not state ADOT’s intent to apply 

the archaeological exception to these sites or 

include other Section 4(f) information 

regarding these sites. No other consultation 

letters or other information were provided in 

the project file or NEPA document as to how 

these two sites were evaluated for Section 

4(f). 

Non-Compliance Observation #2: 

Deficiencies in Analysis of Right-of-Way 

Impacts 

The ADOT’s procedures (ADOT EA/EIS 

Manual) and FHWA’s regulations, policies, 

and guidance provide information on how to 

consider right-of-way impacts in the NEPA 

analysis. The FHWA’s regulations, policies, 

and guidance provide additional information 

on how early property acquisitions should be 

considered with the right-of-way impacts 

analysis. After completing the project file 

review, the audit team identified the 

following procedural deficiencies relating to 

ADOT’s evaluation of right-of-way impacts: 

• One project file did not demonstrate that 

early acquisition of properties and previous 

relocations were adequately addressed in the 

impact analysis in the NEPA document. The 

NEPA document stated that ADOT had 

acquired properties within the project 

corridor during previous planning and 

environmental studies and that ADOT 

intended to incorporate these early 

acquisitions into the right-of-way needed for 

the current project. The CEs previously 

completed for some of these early 

acquisitions included a complete NEPA 

evaluation. However, several CEs previously 

completed for early acquisitions were only 

for title transfer of the properties (per 23 CFR 

771.117(d)(12)) and did not evaluate 

demolition, relocations, or other potential 

environmental impacts. The audit team 

requested additional information from ADOT 

regarding the NEPA analysis of these 

properties. The ADOT responded that the 

project files and NEPA document contained 

a complete record and no additional 

documentation was available. Since the 

properties acquired as early acquisitions 

were incorporated into the right-of-way 

needed for the current project, these 

properties should have been included in the 

NEPA analysis, even though the properties 

were acquired during other planning and 

environmental studies. Based on the 

information provided in the project file and 

the NEPA document, it does not appear that 

all of the early acquisitions were fully 

evaluated in the NEPA analysis for the 

current project, nor were they accounted for 

in the total number of acquisitions required 

for the project (per 23 CFR 771.119(b)). The 

land use, environmental justice, community 

impacts, and indirect and cumulative 

impacts sections provided conflicting 

information regarding the impact analyses of 

these properties. Therefore, it is unclear how 

all the early property acquisitions were 

considered in the overall right-of-way 

impacts analysis in the NEPA evaluation. 

Observation #2: Deficiencies in Section 4(f) 

Documentation of de minimis Impact to 

Historic Properties 

The ADOT’s procedures (ADOT Section 

4(f) Manual Sections 5.1 and 5.4.2 and ADOT 

QA/QC Plan Section 5.1.1) specify 

completing the ‘‘Section 4(f) De Minimis 

Impact for Historic Properties Form’’ in 

addition to obtaining written concurrence 

from the official with jurisdiction. 

After completing the project file review, 

the audit team found that two project files 

did not include the ‘‘Section 4(f) De Minimis 

Impact for Historic Properties Form’’ for de 

minimis impacts to historic properties. 

Observation #3: Inconsistencies in 

Interagency Consultation Documentation 

After completing the project file review, 

the audit team found several inconsistencies 

with ADOT’s documentation of compliance 

with interagency consultation requirements 

(per 40 CFR 93.105). It is unclear if 

interagency consultation occurred for some 

projects since the project files did not 

include information on agency responses, 

concurrence, and the comment resolution 

process. Therefore, it is unknown if the 

interagency consultation agencies had an 

opportunity to participate in consultation or 

if ADOT provided them an opportunity to 

review and comment on the materials as 

required by 40 CFR 93.105 and MOU Section 

7.2.1. 

The audit team is aware that ADOT has 

increased efforts to follow up with agencies 

throughout interagency consultation and 

include email responses with consultation 

documentation and acknowledges ADOT’s 

progress toward improving their processes. 

Quality Assurance/Quality Control 

The audit team verified that ADOT has 

procedures in place for QA/QC which are 

described in the ADOT QA/QC Plan and the 

ADOT Project Development Procedures. No 

observations were identified during this 

audit. 

Performance Measures 

Observations 

Observation #4: Incomplete Development 

and Implementation of Performance 

Measures To Evaluate the Quality of ADOT’s 

Program 

The audit team reviewed ADOT’s 

development and implementation of 

performance measures to evaluate their 

program as required in the MOU (Part 

10.2.1). The ADOT’s QA/QC Plan, PAIR 

response, and self-assessment report 

identified several performance measures, but 

all included limited reporting data for the 

review period. The ADOT’s reporting data 

primarily dealt with increasing efficiencies 

and reducing project delivery schedules 

rather than on measuring the quality of 

relationships with agencies and the general 

public, and decisions made during the NEPA 

process. The metrics ADOT has developed 

are not being utilized to provide a 

meaningful or comprehensive evaluation of 

the overall program. In addition, ADOT’s 

performance measures indicate a disconnect 

between its metrics and availability of 

reportable data. Staff indicated during 

interviews that performance measures are not 

an effective or useful tool in evaluating the 

program. 

Legal Sufficiency 

Through information provided by ADOT 

and interviews by the FHWA Office of Chief 

Counsel with two Assistant Attorneys 

General (AAG) assigned to ADOT’s NEPA 

Assignment Program, the auditors 


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62882 Federal Register / Vol. 88, No. 176 / Wednesday, September 13, 2023 / Notices 

determined ADOT had not completed formal 

legal sufficiency reviews of assigned 

environmental documents during the audit 

period. Currently, ADOT retains the services 

of two AAGs for NEPA Assignment reviews 

and related matters. The assigned AAGs have 

received formal and informal training in 

environmental law matters. 

Successful Practice #7 

Through the interviews, the audit team 

learned ADOT seeks to involve its lawyers 

early in the environmental review phase, 

with AAGs participating in project 

coordination team meetings and reviews of 

early drafts of environmental documents. The 

AAGs will provide legal guidance at any time 

ADOT requests it throughout the project 

development process. For formal legal 

sufficiency reviews, the process includes a 

submittal package containing a request for 

legal sufficiency review. A letter finding of 

legal sufficiency would be included in the 

project file. 

Training 

The audit team reviewed ADOT’s 2021 

Training Plan and ADOT’s PAIR responses 

pertaining to its training program. The ADOT 

continues to maintain a strong training 

program by providing training opportunities 

to staff and dedicating time, effort, and 

resources toward its training program. To 

further support the training program, ADOT 

EP employs a dedicated training coordinator 

within the environmental section. 

Successful Practice #8 

During staff interviews, the audit team 

learned that the staff provides input on the 

training plan and that program managers 

meet quarterly to discuss training needs. Staff 

remarked on the availability of training 

offered to them and considered this to be a 

benefit to ADOT’s NEPA Assignment 

Program. The audit team commends ADOT 

for adjusting to a virtual environment and 

offering online training opportunities for 

staff. 

Status of Observations From the Audit #1 

Report 

This section describes the actions ADOT 

has taken (or is taking) in response to 

observations made during the first audit. 

Non-Compliance Observation #1: Incomplete 

Project Files Submission 

During Audit #1, ADOT submitted 

incomplete project files to FHWA by not 

uploading all files requested by FHWA to the 

file sharing website. For Audit #2, ADOT 

provided FHWA direct access to the project 

files requested for the project file review. The 

ADOT has stated it intends to continue to 

utilize this method for sharing files with 

FHWA. The ADOT also indicated it will 

continue to identify improvements in 

technology to increase efficiencies in file 

sharing. The FHWA appreciates ADOT’s 

efforts towards increasing the transparency 

and communication during the audit process, 

and better utilizing available technologies. 

Non-Compliance Observation #2: ProjectLevel Conformity Compliance Issues 

During Audit #1, the audit team found that 

ADOT’s protocols do not provide for the 

appropriate consultation, coordination, and 

communication with FHWA and other 

agencies to ensure the projects meet the 

project-level conformity requirements where 

required. The audit team found 

documentation for two projects showing that 

ADOT staff did not coordinate with FHWA 

on the application of conformity 

requirements and found multiple projects 

that did not demonstrate ADOT’s compliance 

with interagency consultation requirements 

(per 40 CFR 93.105). As part of Audit #2, the 

audit team learned that ADOT has made 

progress toward addressing these issues. The 

ADOT and FHWA established a joint 

working group that resulted in developing 

draft coordination procedures and 

identifying increased communication 

methods, including monthly coordination 

meetings. During the file review for Audit #2, 

the audit team identified additional 

inconsistencies in the project files as 

described in the observations above. The 

FHWA recognizes ADOT’s efforts toward 

improving its procedures and will continue 

to evaluate this area in subsequent audits. 

Observation #1: Use of the Federal 

Infrastructure Permitting Dashboard 

The ADOT is responsible for inputting 

project information for assigned projects into 

the Federal Infrastructure Permitting 

Dashboard, per MOU Section 8.5.1 and in 

accordance with the Federal Permitting 

Dashboard Reporting Standard. During Audit 

#1, the audit team found that the dashboard 

did not include information for any of the 

applicable projects assigned to ADOT. The 

ADOT has since obtained access to the 

dashboard, designated staff responsible for 

entering project data, and has updated the 

dashboard with relevant project information. 

Observation #2: Inconsistencies and 

Deficiencies Based on the Review of Project 

File Documentation 

After completing the project file review for 

Audit #1, the audit team identified several 

procedural deficiencies relating to the MOU, 

ADOT’s procedures, and FHWA’s 

regulations, policies, and guidance. To 

address this issue, ADOT has developed 

standard templates (forms, checklists) to 

increase consistency in project file 

documentation and has informed staff of 

documentation requirements. The audit team 

identified additional procedural deficiencies 

during Audit #2 as identified in the 

observations described above. The FHWA 

recognizes ADOT’s efforts toward improving 

its procedures and will continue to evaluate 

this area in subsequent audits. 

Observation #3: Incomplete Development 

and Implementation of Performance 

Measures 

During Audit #1, the audit team reviewed 

ADOT’s development and implementation of 

performance measures to evaluate their 

program as required in the MOU (Part 

10.2.1). The Self-Assessment Report did not 

include reporting data for any of the 

performance measures. Due to the lack of 

performance measure data, the audit team 

determined that ADOT had not fully 

established and initiated data collection as it 

relates to performance metrics per the MOU. 

For Audit #2, the audit team reviewed 

ADOT’s performance measures and reporting 

data submitted for the review period. The 

ADOT has made progress toward developing 

and implementing its performance measures, 

though FHWA continues to identify this 

program objective as an area of concern, 

described in the observations above, and will 

continue to evaluate this area in subsequent 

audits. 

Response to Public Comments on the Draft 

Report and the Final Report 

The FHWA received one comment 

applicable to the draft audit report, pursuant 

to 23 U.S.C. 327(g)(2). The American Road & 

Transportation Builders Association 

(ARTBA) commented that they are in general 

support of ADOT’s implementation of the 

NEPA Assignment Program to accelerate 

Federal-aid highway program and project 

delivery in Arizona. The FHWA appreciates 

ARTBA’s input. 

After reviewing the public comments, 

FHWA determined that there is no need to 

revise the draft audit report. Therefore, 

FHWA is finalizing ADOT’s second NEPA 

Assignment audit report with this Federal 

Register notice. 

[FR Doc. 2023–19704 Filed 9–12–23; 8:45 am] 

BILLING CODE 4910–22–P 

DEPARTMENT OF TRANSPORTATION 

Federal Motor Carrier Safety 

Administration 

[Docket No. FMCSA–2023–0037] 

Qualification of Drivers; Exemption 

Applications; Epilepsy and Seizure 

Disorders 

AGENCY: Federal Motor Carrier Safety 

Administration (FMCSA), Department 

of Transportation (DOT). 

ACTION: Notice of denials. 

SUMMARY: FMCSA announces its 

decision to deny applications from 32 

individuals who requested an 

exemption from the Federal Motor 

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prohibiting persons with a clinical 

diagnosis of epilepsy or any other 

condition that is likely to cause a loss 

of consciousness or any loss of ability to 

operate a commercial motor vehicle 

(CMV) from operating CMVs in 

interstate commerce. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Christine A. Hydock, Chief, Medical 

Programs Division, FMCSA, Department 

of Transportation, 1200 New Jersey 

Avenue SE, Washington, DC 20590– 

0001, (202) 366–4001, fmcsamedical@

dot.gov. Office hours are from 8:30 a.m. 

to 5 p.m. ET Monday through Friday, 

except Federal holidays. If you have 

questions regarding viewing material in 

the docket, contact Dockets Operations, 

(202) 366–9826. 


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