[Federal Register Volume 83, Number 172 (Wednesday, September 5, 2018)]
[Notices]
[Pages 45181-45186]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-19184]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

[FHWA Docket No. FHWA-2018-0040]


Surface Transportation Project Delivery Program; Alaska 
Department of Transportation Audit Report

AGENCY: Federal Highway Administration (FHWA), U.S. Department of 
Transportation (DOT).

ACTION: Notice; Request for comment.

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SUMMARY: The Moving Ahead for Progress in the 21st Century Act (MAP-21) 
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 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 
notice announces and solicits comments on the first audit report for 
the Alaska Department of Transportation and Public Facilities (DOT&PF).

DATES: Comments must be received on or before October 5, 2018.

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

[[Page 45182]]

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 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: Mr. David T. Williams, Office of 
Project Development and Environmental Review, (202) 366-4074, 
<a href="/cdn-cgi/l/email-protection#e8ac899e818cc6bf8184848189859ba88c879cc68f879e"><span class="__cf_email__" data-cfemail="1f5b7e69767b3148767373767e726c5f7b706b31787069">[email protected]</span></a>, or Mr. Jomar Maldonado, Office of the Chief 
Counsel, (202) 366-1373, <a href="/cdn-cgi/l/email-protection#e5af8a888497cba88489818a8b84818aa5818a91cb828a93"><span class="__cf_email__" data-cfemail="a0eacfcdc1d28eedc1ccc4cfcec1c4cfe0c4cfd48ec7cfd6">[email protected]</span></a>, Federal Highway 
Administration, 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, in lieu of the 
FHWA. The DOT&PF published its application for NEPA assumption on May 
1, 2016, and made it available for public comment for 30 days. After 
considering public comments, DOT&PF submitted its application to FHWA 
on July 12, 2016. The application served as the basis for developing a 
Memorandum of Understanding (MOU) that identifies the responsibilities 
and obligations that the DOT&PF would assume. The FHWA published a 
notice of the draft MOU in the Federal Register on August 25, 2017, 
with a 30-day comment period to solicit the views of the public and 
Federal Agencies. After the end of the comment period, FHWA and DOT&PF 
considered comments and proceeded to execute the MOU. Effective 
November 13, 2017, DOT&PF assumed FHWA's responsibilities under NEPA, 
and the responsibilities for NEPA-related Federal environmental laws 
described in the MOU.
    Section 327(g) of Title 23, U.S.C., requires the Secretary to 
conduct annual audits during each of the first 4 years of State 
participation. After the fourth year, the Secretary shall monitor the 
State's compliance with the written agreement. The results of each 
audit must be made available for public comment. This notice announces 
the availability of the first audit report for DOT&PF and solicits 
public 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.

    Issued on: August 28, 2018.
Brandye L. Hendrickson,
Deputy Administrator, Federal Highway Administration.

Draft FHWA Audit of the Alaska Department of Transportation

April 16-20, 2018

    The Audit Team finds Alaska Department of Transportation and Public 
Facilities (DOT&PF) is carrying out the National Environmental Policy 
Act (NEPA) Assignment Program responsibilities (assumed November 2017) 
and is compliant with the provisions of the NEPA Assignment Program 
Memorandum of Understanding (MOU). The Alaska DOT&PF has established 
written internal policies and procedures for the assumed Federal 
responsibilities. Following 5 months after execution of the MOU, the 
Audit Team identified one non-compliance observation, seven general 
observations, and six successful practices. Overall, DOT&PF has carried 
out the environmental responsibilities it assumed through the MOU and 
the application for the NEPA Assignment Program.

Executive Summary

    This report summarizes the results of the Federal Highway 
Administration's (FHWA) first audit of the Alaska DOT&PF NEPA review 
responsibilities and obligations that FHWA has assigned and DOT&PF has 
assumed pursuant to 23 United States Code (U.S.C.) 327. Throughout this 
report, FHWA uses the term ``NEPA Assignment Program'' to refer to the 
program codified at 23 U.S.C. 327. Under the authority of 23 U.S.C. 
327, DOT&PF and FHWA signed a MOU on November 3, 2017, to memorialize 
DOT&PF's NEPA responsibilities and liabilities for Federal-aid highway 
projects and certain other FHWA approvals for transportation projects 
in Alaska. Except for three projects, which FHWA retained, FHWA's only 
NEPA responsibilities in Alaska are oversight and review of how DOT&PF 
executes its NEPA Assignment Program obligations. The MOU covers 
environmental review responsibilities for projects that require the 
preparation of environmental assessments (EAs), environmental impact 
statements (EIS), and categorical exclusions (CE).
    As part of its review responsibilities under 23 U.S.C. 327, FHWA 
formed a team in October 2017 to plan and conduct an audit of NEPA 
responsibilities DOT&PF assumed. Prior to the on-site visit, the Audit 
Team reviewed DOT&PF's NEPA project documentation, DOT&PF's response to 
FHWA's pre-audit information request (PAIR), and DOT&PF's self-
assessment of its NEPA Program. The Audit Team reviewed additional 
documents and conducted interviews with DOT&PF staff in Alaska on April 
16-20, 2018.
    The DOT&PF entered into the NEPA Assignment Program after more than 
8 years of experience making FHWA NEPA CE determinations pursuant to 23 
U.S.C. 326 (beginning September 22, 2009). The DOT&PF's environmental 
review procedures are compliant for CEs, and DOT&PF is implementing 
procedures and processes for CEs, EAs, and EISs as part of its new 
responsibilities under the NEPA Assignment Program. Overall, the Audit 
Team found that DOT&PF is successfully adding CE, EA, and EIS project 
review responsibilities to an already successful CE review program. The 
Audit Team identified one non-compliance observation, seven general 
observations, as well as several successful practices. The Audit Team 
finds DOT&PF is carrying out the responsibilities it has assumed and is 
in compliance with the provisions of the MOU.

Background

    The NEPA Assignment Program allows a State to assume FHWA's 
environmental responsibilities for review, consultation, and compliance 
for Federal-aid highway projects. Under 23 U.S.C. 327, a State that 
assumes these Federal responsibilities becomes solely responsible and 
solely liable for carrying them out. Effective November 13, 2017, 
DOT&PF assumed FHWA's responsibilities under NEPA and other related 
environmental laws. Examples of responsibilities DOT&PF has assumed in 
addition to NEPA include Section 7

[[Page 45183]]

consultation under the Endangered Species Act (ESA) and consultation 
under Section 106 of the National Historic Preservation Act (NHPA).
    Following this first audit, FHWA will conduct three more annual 
audits to satisfy provisions of 23 U.S.C. 327(g) and Section 11 of the 
MOU. Audits are the primary mechanism through which FHWA may oversee 
DOT&PF's compliance with the MOU and the NEPA Assignment Program 
requirements. This includes ensuring compliance with applicable Federal 
laws and policies, evaluating DOT&PF's progress toward achieving the 
performance measures identified in MOU Section 10.2, and collecting 
information needed for the Secretary's annual report to Congress. The 
FHWA must present the results of each audit in a report and make it 
available for public comment in the Federal Register.
    The Audit Team consisted of NEPA subject matter experts from the 
FHWA Alaska Division, as well as from FHWA offices in Washington, 
District of Columbia; Atlanta, Georgia; Sacramento, California; and 
Lakewood, Colorado. These experts received training on how to evaluate 
implementation of the NEPA Assignment Program. In addition, the FHWA 
Alaska Division designated their Environmental Program Manager to serve 
as a NEPA Assignment Program liaison to DOT&PF.

Scope and Methodology

    The Audit Team conducted an examination of DOT&PF's NEPA project 
files, DOT&PF responses to the PAIR, and DOT&PF's self-assessment. The 
audit also included interviews with staff and reviews of DOT&PF 
policies, guidance, and manuals pertaining to NEPA responsibilities. 
All reviews focused on objectives related to the six NEPA Assignment 
Program elements: program management; documentation and records 
management; quality assurance/quality control (QA/QC); legal 
sufficiency; training; and performance measurement.
    The focus of the audit was on DOT&PF's individual project 
compliance and adherence to program practices and procedures. 
Therefore, while the Audit Team reviewed project documentation to 
evaluate DOT&PF's NEPA process and procedures, the team did not 
evaluate DOT&PF's project-specific decisions to determine if they were, 
in FHWA's opinion, correct or not. The Audit Team reviewed NEPA 
documents from 41 projects including Programmatic CEs, CEs, EAs and Re-
evaluations, a representative sample of all NEPA documents in process 
or initiated after the MOU's effective date. The Audit Team also 
interviewed environmental staff in all three DOT&PF regions as well as 
their headquarters office.
    The PAIR consisted of 66 questions about specific elements in the 
MOU. The Audit Team appreciates the efforts of DOT&PF staff to meet the 
review schedule in supplying their response. These responses were used 
to develop specific follow-up questions for the on-site interviews with 
DOT&PF staff.
    The Audit Team conducted 22 on-site and 6 phone interviews. 
Interviewees included staff from each of DOT&PF's three regional 
offices and DOT&PF headquarters. The Audit Team invited DOT&PF staff, 
middle management, and executive management to participate in 
interviews to ensure the interviews represented a diverse range of 
staff expertise, experience, and program responsibility.
    Throughout the document reviews and interviews, the Audit Team 
verified information on the DOT&PF NEPA Assignment Program including 
DOT&PF policies, guidance, manuals, and reports. This included the NEPA 
QA/QC Plan, the NEPA Assignment Program Training Plan, and the NEPA 
Assignment Self-Assessment Report.
    The Audit Team utilized information obtained during interviews and 
project file documentation reviews to consider the State's 
implementation of the assignment program through DOT&PF environmental 
manuals, procedures, and policy. This audit is a compliance review of 
DOT&PF's adherence to their own documented procedures in compliance 
with the terms of the MOU. The team documented observations under the 
six NEPA Assignment Program topic areas. Below are the audit results.

Overall Audit Opinion

    The Audit Team acknowledges DOT&PF's effort to establish written 
internal policies and procedures for the new responsibilities they have 
assumed. This report identifies one non-compliant observation that 
DOT&PF will need to address through corrective action. These non-
compliance observations come from a review of DOT&PF procedures, 
project file documentation, and interview information. This report also 
identifies several notable observations and successful practices that 
we recommend be expanded. Overall, DOT&PF has carried out the 
environmental responsibilities it assumed through the MOU and the 
application for the NEPA Assignment Program, and as such the Audit Team 
finds that DOT&PF is substantially compliant with the provisions of the 
MOU.

Non-Compliance Observations

    Non-compliance observations are instances where the team found 
DOT&PF was out of compliance or deficient in proper implementation of a 
Federal regulation, statute, guidance, policy, the terms of the MOU, or 
DOT&PF's own procedures for compliance with the NEPA process. Such 
observations may also include instances where DOT&PF has failed to 
maintain technical competency, adequate personnel, and/or financial 
resources to carry out the assumed responsibilities. Other non-
compliance observations could suggest a persistent failure to 
adequately consult, coordinate, or consider the concerns of other 
Federal, State, Tribal, or local agencies with oversight, consultation, 
or coordination responsibilities. The FHWA expects DOT&PF to develop 
and implement corrective actions to address all non-compliance 
observations. The FHWA will conduct follow up reviews of non-compliance 
observations in Audit #2 from this review.

Observations and Successful Practices

    This section summarizes the Audit Team's observations of DOT&PF's 
NEPA Assignment Program implementation, including successful practices 
DOT&PF may want to continue or expand. Successful practices are 
positive results that FHWA would like to commend DOT&PF on developing. 
These may include ideas or concepts that DOT&PF has planned but not yet 
implemented. Observations are items the Audit Team would like to draw 
DOT&PF's attention to, which may benefit from revisions to improve 
processes, procedures, or outcomes. The DOT&PF may have already taken 
steps to address or improve upon the Audit Team's observations, but at 
the time of the audit they appeared to be areas where DOT&PF could make 
improvements. This report addresses all six MOU topic areas as separate 
discussions. Under each area, this report discusses successful 
practices followed by observations.
    This audit report provides an opportunity for DOT&PF to begin 
implementing actions to improve their program. The FHWA will consider 
the status of areas identified for potential improvement in this 
audit's observations as part of the scope of Audit #2. The second Audit 
Report will include a summary discussion that describes progress since 
the last audit.

[[Page 45184]]

Program Management

    The review team acknowledges the DOT&PF's efforts to accommodate 
their environmental program to the 23 U.S.C. 327 responsibilities they 
have assumed. These efforts include updating their Environmental 
Procedures Manual, developing and implementing an expanded QA/QC Plan, 
establishing an Environmental Program Training Plan, and implementing a 
self-assessment process identifying deficiencies that were described 
and addressed in a report.

Successful Practices

    The Audit Team found that DOT&PF has, overall, appropriately 
implemented its project-level review and compliance responsibility for 
CEs, EAs, and EISs. The DOT&PF has established a vision and direction 
for incorporating the NEPA Assignment Program into its overall project 
development process. This was clear in the DOT&PF's responses to FHWA's 
PAIR and in interviews with staff in the regions and at DOT&PF's 
headquarters office, commonly known as the Statewide Environmental 
Office (SEO).
    The DOT&PF increased environmental staff in the SEO to support the 
new responsibilities under the NEPA Assignment Program. Staff at SEO 
are responsible for the review of some projects classified as CEs and 
all projects classified as EAs and EISs. Regional environmental staff 
coordinate their NEPA work through Regional Environmental Managers and 
NEPA Program Managers at SEO. Some staff responsibilities have changed 
under the NEPA Assignment Program, but positions have essentially 
remained unchanged. Following assumption of NEPA responsibilities, 
DOT&PF hired a statewide NEPA Assignment Program Manager who is 
responsible for overseeing DOT&PF's policies, manuals, guidance, and 
training under the NEPA Assignment Program.
    The Audit Team would also like to recognize DOT&PF efforts to bring 
a lawyer into the early stages of project development to ensure a 
legally defensible document.

Non-Compliance Observation #1: Opportunity of a Public Hearing

    Section 7.2.1 of the MOU requires the DOT&PF to develop procedures 
to implement the responsibilities assumed. This review identified one 
example of deficient adherence to these State procedures. This Audit 
Team identified one project file where DOT&PF did not offer the 
opportunity for a public hearing for the release of the Draft EA 
consistent with its own public involvement procedures in the January 
2005 Preconstruction Manual Section 520.4.1 or the February 2018 
Environmental Procedures Manual Section 4.4.2. The Audit Team confirmed 
with SEO that although public meetings were held, no opportunity for a 
public hearing was provided.

Observation #1: Programmatic Section 106 Compliance and Section 4(f) 
Compliance

    The DOT&PF's November 2017 Section 106 Programmatic Agreement (PA) 
established an alternate procedure for Section 106 compliance in Alaska 
which allows the use of a streamlined process. The Audit Team 
identified a risk to DOT&PF in the application of their Section 106 PA 
to projects that require integrating the Section 106 process results to 
comply with the requirements of Section 4(f).
    a. The PA notes that the streamlined process is applicable to 
projects with low potential to affect historic properties. The DOT&PF 
staff characterized how they apply the streamlined Section 106 process 
to individual projects as ones that result in little or no potential to 
affect historic properties. The DOT&PF project documentation for the 
streamlined Section 106 compliance is a form that does not identify 
either a project effect or the effect to a specific historic property.
    b. Because the use of the streamlined form does not identify a 
Section 106 effect for any individual historic property, the DOT&PF 
documentation cannot support any required Section 4(f) de minimis 
impact determinations. (see 23 CFR 774.5(b)(1))

Observation #2: Lack of a process to implement planning consistency at 
time of a NEPA decision

    Section 3.3.1 of the MOU requires DOT&PF to, at the time they make 
a NEPA approval (CE determination, finding of no significant impact, or 
record of decision) check to ensure that the project's design concept, 
scope, and funding is consistent with current planning documents. 
Reviews of project documents provided no evidence that DOT&PF staff had 
reviewed planning documents for availability of funding. Through 
interviews it was clear that their understanding of this requirement 
varied. Through reviews of DOT&PF manuals, the Audit Team could not 
find a procedure for staff to follow so that at the time staff makes a 
NEPA approval, they are also checking (and documenting) that the 
project's design concept, scope, and funding is consistent with 
planning documents.

Observation #3: Staff Capacity

    Sections 4.2.1 and 4.2.2 discuss the State's commitment of 
resources and adequate organizational and staff capability. Several 
DOT&PF staff explained through interviews, that since the State's entry 
into the full NEPA Assignment Program, their required review and 
documentation efforts dramatically increased. We learned from two 
region office staff that, because of the increased workload, the region 
office did not have sufficient resources to manage the workload 
associated with the NEPA Assignment Program. A related concern was the 
challenge in retaining qualified staff, possibly leading to a delay in 
project delivery. (MOU Section 4.2.1 and 4.2.2)

Observation #4: Government-to-Government Consultation

    Section 3.2.3 of the MOU excludes assignment of the responsibility 
for Government-to-Government consultation with Tribes, to DOT&PF. The 
Audit Team learned through interviews, and a check of DOT&PF's 
environmental manual, that the DOT&PF has no written procedures on how 
its staff are to accommodate a Tribal request for Government-to-
Government consultation with FHWA. Through interviews it was apparent 
that DOT&PF's staff has an inconsistent understanding of how to handle 
this scenario. Staff indicated they would like written guidance that 
addresses the process that includes FHWA's role. (MOU Section 3.2.3)

Documentation and Records Management

    The NEPA Assignment Program became effective on November 13, 2017. 
From that effective date through February 28, 2018, the DOT&PF made 56 
project decisions. By employing both judgmental and random sampling 
methods, the Audit Team reviewed NEPA project documentation for 41 of 
these decisions.

Successful Practices

    The Audit Team recognizes several efforts to improve consistency of 
filing project documentation learned through project documentation 
reviews and interviews. These include: the use of a standardized 
electronic folder structure developed by Central Region; a spreadsheet 
template used in Central Region to manage tasks and standardize filing 
of project documents; and Southcoast Region utilizing a document

[[Page 45185]]

specialist to ensure that project files are complete.
    The Audit Team would also like to commend DOT&PF's use of the 
optional 23 CFR 771.117(e) form for CE projects classified as c(26), 
c(27), or c(28) because it clearly and efficiently demonstrates that 
the conditions required for the project to be processed as a ``c-list'' 
CE have been met. We urge DOT&PF management to consider making this 
form a required part of CE documentation.

Observation #5: Section 106 Compliance

    Section 5.1.1 of the MOU requires the State to follow Federal laws, 
regulations, policy, and procedures to implement the responsibilities 
assumed, and Section 4.2.3 specifically calls out requirements 
pertaining to historic properties. This review identified two examples 
of deficient adherence to these Federal Section 106 compliance 
procedures. The regulations that implement Section 106 of the NHPA 
require the Agency Official to consider the impacts of their 
undertaking on historic properties and to afford the State Historic 
Preservation Officer (SHPO) an opportunity to comment. Through project 
file reviews, the Audit Team identified one instance where the Section 
106 review did not consider the full extent of the project's 
undertaking. This was a project where an off-ramp bypass lane was added 
to the project but was not considered as part of Section 106 
compliance. Note that this error was also discovered by DOT&PF during 
their self-assessment and corrective action has been completed. In the 
second instance, the review of project file documentation revealed that 
DOT&PF incorrectly made a decision that Section 106 compliance 
requirements to make an effect determination did not apply.

Quality Assurance/Quality Control

    The Audit Team recognizes that the DOT&PF is in the early stages of 
the NEPA Assignment Program. However, the Audit Team made the following 
observations related to QA/QC.

Successful Practices

    The MOU requires the DOT&PF to conduct an annual self-assessment of 
its QA/QC process and performance. The Audit Team found the DOT&PF's 
self-assessment report to be well-written and comprehensive with in-
depth analyses. This documents their commitment to implementing a 
compliant NEPA Assignment Program.
    The Audit Team would like to recognize the SEO's use of the QA/QC 
database for tracking QA/QC reviews. This allows them to quantify the 
review results to better identify trends or areas of concern that 
should be addressed.
    The Audit Team learned through interviews that the Section 106 
professionally qualified individuals in SEO review the information the 
regions submit to the SHPO. The SEO staff said that the records were 
adequate overall, but occasional follow up with individual regions was 
necessary to increase the clarity and address possible omissions. This 
SEO feedback should result in increased consistency and clarity in 
Section 106 documentation subject to interagency review.

Observation #6: QC staff roles and responsibilities

    The DOT&PF's QA/QC plan identifies a Project Development Team who 
would review documents to ensure consistency, conciseness, and overall 
quality, but it does not discuss specific responsibilities of 
individual members for the QA/QC process. In addition, staff did not 
consistently articulate the QA/QC responsibilities of the Project 
Development Team members. The Audit Team would like to draw the 
DOT&PF's attention to what appears to be an inconsistent awareness of 
the use of Project Development Teams and the roles and responsibilities 
of team members for QC.

Training Program

    Per MOU Section 12 Training, the DOT&PF committed to implementing 
training necessary to meet its environmental obligations assumed under 
the NEPA Assignment Program. As required in the MOU the DOT&PF also 
committed to assessing its need for training, developing a training 
plan, and updating the training plan on an annual basis in consultation 
with FHWA and other Federal Agencies as deemed appropriate.
    The DOT&PF developed the 2018 Environmental Program Training Plan 
to fulfill the requirements of Section 12 of the MOU. The 2018 
Environmental Program Training Plan is a comprehensive document that 
addresses a number of issues related to training including:
    <bullet> a variety of in-person and virtual training methods that 
could be used by DOT&PF;
    <bullet> the timing of, and approach to, updating the 2018 
Environmental Program Training Plan;
    <bullet> the development of an individual training plan (ITP) that 
outlines both mandatory and non-mandatory training;
    <bullet> the training and experience the employees must acquire to 
be considered for promotion; and
    <bullet> maintaining a record of trainings that were taken by 
employees in the last 3 years and their anticipated training requests 
for the upcoming year.

Successful Practices

    Tracking environmental training is required by the DOT&PF's 2018 
Environmental Program Training Plan. One PD&E Chief shared a 
spreadsheet developed to track all the training taken by his staff, 
including environmental courses. The Audit Team believes this tool will 
help ensure employees received required training to advance the NEPA 
Assignment Program.

Observations:

Observation #7: Training Program

    MOU Sections 12.2, 4.2.2 and 4.2.3 require the DOT&PF to retain 
staff and the organizational capacity to implement their program and to 
implement training. Training often is an important tool for attaining 
and maintaining staff and organizational capacity. The Audit Team asked 
DOT&PF staff to share their perceptions about the training requirements 
in the plan; the adequacy of the training budget; and how training 
relates to their job responsibilities, performance, and employee 
development and promotion. The Audit Team urges the DOT&PF to consider 
ways to accommodate training needs and consider various approaches to 
deliver necessary training in a timely manner:
    a) Regarding training requirements, some interviewees said that the 
DOT&PF's training plan requirements were unrealistic because either: 1) 
staff was too busy working on projects to have the time to complete the 
training courses identified in the plan; or 2) given the turnover rates 
in their office and the frequency of training offered, employees were 
unlikely to get all required training during their tenure. The Audit 
Team considers the plan to be realistic and urges the DOT&PF to 
consider ways to address these challenges.
    b) Regarding the training budget, interview responses revealed no 
consensus. The DOT&PF management indicated a strong desire to have a 
robust NEPA program and some interviewees responded that they felt that 
the training budget was adequate. However, responses from other 
interviewees indicated that the training budget was inadequate, 
especially as it relates to travel. The Audit Team was unable to 
resolve whether the budget was inadequate and will consider this issue 
again in the next audit.
    c) The 2018 Environmental Program Training Plan links training to 
employee

[[Page 45186]]

development and promotion. Interviews revealed: (1) inconsistent 
preparation and use of an ITP as is required for employees; (2) 
perceptions that training requirements for flexing from an Analyst 1 to 
Analyst 2 position are clearly spelled out, but not for advancement 
beyond an Analyst 2 position; (3) concerns that training opportunities 
are too limited or not available; and (4) some employees have not had a 
performance review in several years. Based on this input, the Audit 
Team suggests that the DOT&PF focus on additional ways to improve 
implementation of their Training Plan.
    d) Regarding training needs, DOT&PF staff indicated a need for 
Section 4(f) training, according to interviews in all three regions and 
SEO. Multiple interviewees also identified a need for training in noise 
and floodplains. Training needs cited at a lesser frequency included 
ESA, cumulative effects, Section 408, EA/EIS, QA/QC, Planning and 
Environmental Linkages, stream enhancement, NEPA, conflict resolution 
and mediation. Given that the DOT&PF is now implementing additional 
environmental review responsibilities based on the MOU, and staff 
recognize the need to be prepared to embrace those responsibilities, 
the Audit Team urges the DOT&PF to address these training needs 
expeditiously, and be sensitive to ongoing training needs.

Performance Measures

    The DOT&PF has demonstrated it has taken an active interest in 
developing, monitoring, and implementing the performance measures 
required by the MOU. The March 21, 2018, DOT&PF NEPA Assignment Self-
Assessment Summary Report contained the results of the DOT&PF's first 
report of its assessment of NEPA Assignment and DOT&PF procedures 
compliance. The DOT&PF's March 1, 2017, response to FHWA's PAIR 
included answers to questions posed on performance measures. Because of 
the information provided in these two documents, combined with the fact 
that a relatively brief period of time has transpired since the MOU 
became effective, the Audit Team has not identified any observations or 
successful practices here. However, the following discussion describes 
the current status of the DOT&PF's performance measures.
    The DOT&PF's performance measure to assess change in communication 
among the DOT&PF, Federal and State resource agencies, and the public 
resulting from assumption of responsibilities under this MOU was based 
on the experience of a single EA project, according to DOT&PF's self-
assessment summary report. Through interviews, the Audit Team learned 
that the DOT&PF believes the resource agencies will observe little 
change in communication and consultation because DOT&PF had been 
operating under a 23 U.S.C. 326 MOU since September 2009.
    The DOT&PF's self-assessment summary report suggests some early 
efficiencies have been observed, but the consensus from interviews was 
that it is too early to determine if substantial increased efficiencies 
and timeliness will result from the program. Some individuals indicated 
that over time the program should result in increased efficiencies and 
timeliness.
    Through interviews, the Audit Team learned that data for 
performance measures are being collected and presented quarterly to 
DOT&PF management for use in decisionmaking. Also, that DOT&PF believes 
the existing performance measures are comprehensive and adequate. The 
DOT&PF leadership said that performances measures will be evaluated 
annually to determine if adjustment is needed.

Legal Sufficiency

    Interviews with both staff and management attorneys emphasized the 
legal sufficiency review process emulated FHWA's ``early legal 
involvement'' concept, i.e., bringing a lawyer onto the reviewing team 
at an early stage in project development. We learned that DOT&PF staff 
do not need to go through management to talk to an attorney, but may 
call or email at any time (and, with regard to EAs, have done so under 
NEPA Assignment). Management noted specific review steps are to take 
place at the both draft and final stages for assigned EISs and 
Individual Section 4(f) Evaluations.
    At this time, the Alaska Department of Law (DOL) expressed no 
intention of expanding the number of staff attorneys assigned to 
document review; however, it has a contingency plan should workload 
increase significantly in future. Specifically, should DOT&PF be sued 
over an assigned project, DOL tentatively intends to contract with 
outside counsel (per 23 U.S.C. 327[a][2][G]) to handle the litigation 
rather than make a single staff attorney divide his time between 
document review and defending the case. The Transportation Section 
attorney would act as support counsel to the litigators in a manner 
similar to the way FHWA counsel provide litigation support to the U.S. 
Department of Justice when it defends FHWA's environmental decisions in 
court. (MOU Section 6.1.1)

Next Steps

    The FHWA provided this draft audit report to DOT&PF for a 14-day 
review and comment period. The Audit Team considered DOT&PF comments in 
developing this draft audit report. The FHWA will publish a 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 respond to all comments submitted to finalize this 
draft audit report pursuant to 23 U.S.C. 327(g)(B). The FHWA will 
publish the final audit report in the Federal Register.

[FR Doc. 2018-19184 Filed 9-4-18; 8:45 am]
BILLING CODE 4910-22-P


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