[Federal Register Volume 86, Number 156 (Tuesday, August 17, 2021)]
[Notices]
[Pages 46068-46070]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-17545]



[[Page 46068]]

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

[Docket No. FRA 2021-0037]


Surface Transportation Project Delivery Program; California High-
Speed Rail Authority Audit Report

AGENCY: Federal Railroad Administration (FRA), U.S. Department of 
Transportation (DOT).

ACTION: Notice.

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SUMMARY: The Surface Transportation Project Delivery Program (STPD 
Program), often referred to as the ``NEPA Assignment Program,'' allows 
a State to assume FRA's responsibilities for Federal environmental 
review, consultation, and compliance under the National Environmental 
Policy Act (NEPA) and other Federal environmental laws, for railroad 
projects. In accordance with the July 23, 2019, memorandum of 
understanding (section 327 MOU) between FRA and the California High-
speed Rail Authority (CHSRA), CHSRA assumed the environmental review 
process, in lieu of FRA. The STPD Program mandates annual audits by FRA 
for the first four years of a State's involvement in the STPD Program, 
ensuring CHSRA's compliance with program requirements. This notice 
finalizes FRA's findings of the first-year audit of CHSRA participation 
in the STPD Program.

FOR FURTHER INFORMATION CONTACT: Andr[eacute]a Martin, Senior 
Environmental Protection Specialist, Office of Railroad Policy and 
Development (RPD), telephone: (202) 493-6201, email: 
<a href="/cdn-cgi/l/email-protection#24654a405641450a694556504d4a64404b500a434b52"><span class="__cf_email__" data-cfemail="3f7e515b4d5a5e11725e4d4b56517f5b504b11585049">[email protected]</span></a>; or Marlys Osterhues, Chief Environment and 
Project Engineering, RPD, telephone: (202) 493-0413, email: 
<a href="/cdn-cgi/l/email-protection#14597566786d673a5b676071667c61716754707b603a737b62"><span class="__cf_email__" data-cfemail="1855796a74616b36576b6c7d6a706d7d6b587c776c367f776e">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:
    Electronic Access: An electronic copy of this notice and all 
comments received may be downloaded from the docket page for FRA-2021-
0037 at www.regulations.gov.
    Background: FRA's annual audits are the primary mechanism to: (1) 
Oversee CHSRA's compliance with the STPD Program, the section 327 MOU, 
and applicable Federal laws and policies under NEPA; (2) determine 
CHSRA's attainment of the performance measures identified in part 10 of 
the section 327 MOU; and (3) collect information needed for the 
Secretary of Transportation's annual report to Congress pursuant to 23 
U.S.C. 327(i).
    FRA will conduct three more annual audits consistent with 23 U.S.C. 
327(g) and part 11 of the section 327 MOU. FRA must present the results 
of each audit in a report and make the draft report available for 
public comment in the Federal Register, before finalizing.
    FRA received one response during public comment period between 
April 21, 2021, and May 21, 2021. The comment, available in the docket, 
was submitted by the American Road and Transportation Builders 
Association and outlined its general support for the STPD Program. FRA 
considered this comment and determined that it did not require changes 
in the content of the draft report. This notice includes the final 
version of the audit report.

Surface Transportation Project Delivery Program Audit of the California 
High-Speed Rail Authority: December 8-10, 2020

Executive Summary

    This report summarizes the results of FRA's first audit of the 
CHSRA's conduct of its environmental review responsibilities under 23 
U.S.C. 327, in accordance with the section 327 MOU executed July 23, 
2019, between CHSRA and FRA.
    To carry out its audit responsibilities under the section 327 MOU, 
FRA formed a team (Audit Team) in April 2020. The Audit Team consisted 
of NEPA subject matter experts (SMEs) from FRA's environmental and 
project management divisions and the John A. Volpe National 
Transportation Systems Center. In addition, FRA designated a Senior 
Environmental Protection Specialist to serve as a NEPA Assignment 
Program liaison to CHSRA. The Audit Team reviewed certain NEPA project 
documentation completed by CHSRA during the first year of the NEPA 
Assignment Program, and CHSRA's self-assessment of its NEPA Assignment 
Program. In addition, the Audit Team reviewed documents related to 
quality assurance/quality control (QA/QC) and conducted interviews with 
relevant CHSRA staff between December 8 and 10, 2020.
    The purpose of this report is to describe the results of the audit. 
Overall, the Audit Team found that CHSRA is carrying out the 
responsibilities it has assumed and complies with the provisions of the 
section 327 MOU.

Background

    The STPD Program, codified at 23 U.S.C. 327, allows a State to 
assume FRA's environmental responsibilities for review, consultation, 
and compliance for railroad projects. When a State assumes these 
Federal responsibilities, the State becomes solely liable for carrying 
out the responsibilities it has assumed, in lieu of the FRA. CHSRA 
published its application under the STPD Program on November 9, 2017 
and made it available for public comment for 30 days. After considering 
public comments, CHSRA submitted its application to FRA on January 31, 
2018. The application served as the basis for developing an MOU 
identifying the responsibilities and obligations that CHSRA would 
assume.
    FRA published a notice of the draft MOU in the Federal Register on 
May 2, 2018, with a 30-day comment period to solicit the views of the 
public and Federal agencies. After the close of the comment period, FRA 
and CHSRA considered comments and proceeded to execute the MOU. On July 
23, 2019, CHSRA assumed FRA's responsibilities under NEPA, and the 
responsibilities for NEPA-related Federal environmental laws described 
in the section 327 MOU.
    Section 327(g) requires the Secretary to conduct annual audits 
during each of the first four years of State participation. Audits are 
the primary mechanism for FRA to oversee CHSRA's compliance with the 
provisions set forth in the section 327 MOU. FRA's annual audits, 
conducted pursuant to 23 U.S.C. 327(g), will be the primary mechanism 
to: (1) Determine the State's compliance with this MOU and applicable 
Federal laws and policies; (2) confirm the State's attainment of the 
performance measures identified in part 10 of the section 327 MOU; and 
(3) collect information needed for the Secretary of Transportation's 
annual report to Congress pursuant to 23 U.S.C. 327(i). FRA will 
conduct three more annual audits consistent with 23 U.S.C. 327(g) and 
part 11 of the section 327 MOU. FRA will present the results of each 
audit in a report and make the report available for public comment in 
the Federal Register, before finalizing.

Scope and Methodology

    Consistent with the section 327 MOU, the Audit Team examined a 
sampling of CHSRA's NEPA project files; CHSRA's self-assessment report; 
and CHSRA policies, guidance, and manuals relating to NEPA 
responsibilities. The scope of the project file portion of the audit 
included a review of six reexaminations for previously approved Final 
Environmental Impact Statements (EISs) and one Final EIS/Record of 
Decision (ROD), representing all projects in process or initiated after 
the section 327 MOU's effective date through June 30, 2020. In 
conducting the audit, and to determine compliance with the section 327 
MOU, the FRA Audit Team focused on objectives related to six NEPA

[[Page 46069]]

Assignment Program Elements: Program management, documentation and 
records management, QA/QC, training, performance measurement, and legal 
sufficiency. Each NEPA Assignment Program Element is described further 
below.
    The Audit Team interviewed 11 CHSRA staff, in one of CHSRA's three 
regional offices and at its headquarters office. In addition, the Audit 
Team interviewed one staff member from the U.S. Environmental 
Protection Agency (EPA). The Audit Team invited CHSRA staff, middle 
management, counsel, and executive management to participate in the 
interview process to ensure representation of a diverse range of staff 
expertise, experience, and program responsibility.
    The Audit Team compared the procedures outlined in CHSRA 
environmental manuals and policies to the information obtained during 
staff interviews and project file reviews to evaluate CHSRA's 
performance against its documented procedures. The Audit Team 
documented observations under the six NEPA Assignment Program Elements.

Audit Results

    Overall, CHSRA has carried out the environmental responsibilities 
assumed through the section 327 MOU and the Audit Team found that CHSRA 
is complying with the section 327 MOU.

Program Management

    Consistent with part 4 of the section 327 MOU, CHSRA has developed 
and implemented the updated Environmental Policies and Procedures 
Handbook, Environmental Compliance Program Manual, a QA/QC Plan, and 
the NEPA Assignment Training Course. CHSRA has also conducted the 
required self-assessment.
    CHSRA has incorporated the NEPA Assignment Program into its overall 
project development process included in CHSRA's environmental manuals 
and policies. CHSRA has also created a NEPA assignment team in its 
headquarters office to support the new responsibilities under the NEPA 
Assignment Program. CHSRA staff at the headquarters office responsible 
for ensuring NEPA Assignment responsibilities are fulfilled review 
projects for compliance with assigned environmental laws and 
regulations independently from those responsible for developing the 
NEPA and related documentation, as required in part 3 of the section 
327 MOU.
    CHSRA environmental staff at the three regional offices coordinate 
their NEPA related project-work with headquarters staff through NEPA 
Coordinators. Prior to assuming responsibilities under the NEPA 
Assignment Program, CHSRA regional staff reported to their regional 
office. However, following assumption of NEPA responsibilities, CHSRA 
hired a NEPA Assignment Manager located in the headquarters office who 
is responsible for overseeing CHSRA's policies, manuals, guidance, and 
training under the NEPA Assignment Program. CHSRA also has assigned a 
team of attorneys to advise on the environmental review process. This 
team includes CHSRA in-house counsel as well as outside counsel who 
advise on issues relate to the assigned responsibilities.
    Since the NEPA Assignment Program became effective, CHSRA staff 
noted that their relationship with resource agencies has not changed, 
and the overall environmental and consultation process has continued 
without significant change. FRA's Audit Team's review of project files 
supports this conclusion.

Documentation and Records Management

    Between July 23, 2019, and June 30, 2020, CHSRA made 22 auditable 
NEPA actions. Employing judgmental sampling, the Audit Team reviewed 
seven NEPA project files, including six reexaminations of previously 
approved Final EISs and one combined Final EIS/ROD. These projects 
represented a sampling of CHSRA environmental review efforts in process 
or initiated after the section 327 MOU's effective date through June 
30, 2020, covering a range of resource considerations and agency 
coordination requirements. The Audit Team found that CHSRA maintained a 
complete electronic record, including all NEPA-related documentation.
    The Audit Team recognized several CHSRA efforts to ensure 
consistency of project documentation through CHSRA's use of an 
accessible file database. Interviews with CHSRA staff indicated that 
the regional staff consistently manage project files, including working 
files. In addition, CHSRA uses a software program to document public 
and resource agency comments, allowing CHSRA to track comments, 
responses, and resolution.

Quality Assurance/Quality Control

    Under part 10.2.B of the section 327 MOU, CHSRA has agreed to carry 
out regular QA/QC activities to ensure the assumed responsibilities are 
conducted in accordance with applicable law and the section 327 MOU. 
The Audit Team noted that CHSRA has implemented a QA/QC program where 
environmental staff in the three regions coordinate with the NEPA 
assignment team in the headquarters office. The NEPA assignment team is 
responsible for reviewing all NEPA documentation and technical reports 
to ensure compliance. CHSRA staff also have access to SMEs for various 
environmental resources and regulations. During interviews, CHSRA noted 
that the NEPA assignment team acts independently to provide unbiased 
and objective reviews of work products. The Audit Team also found that 
regional staff understands how to implement the QA/QC process 
throughout the environmental review process.
    During subsequent audits, the FRA Audit Team will require that 
supporting QA/QC documentation associated with project files be 
provided to FRA. This will allow the Audit Team to confirm QA/QC 
measures are being fully implemented for the projects under review. The 
Audit Team also recommends that CHSRA review a judgmental or random 
sampling of projects between FRA's annual audits to check compliance 
and identify potential improvements that can be made to the QA/QC 
process.

Training Program

    CHSRA committed to implementing training necessary to meet its 
environmental obligations under the section 327 MOU. The training 
covers all topics related to CHSRA's responsibilities under NEPA 
assignment. Based on interviews and a review of training documentation 
and records, all CHSRA staff received the training in accordance with 
the training plan after the MOU was executed.
    The FRA Audit Team recommends that CHSRA expand its training plan 
to include additional training opportunities. This training could 
include formal or informal training with State and Federal resource 
agencies in addition to the regularly scheduled agency coordination 
meetings.

Performance Measures

    In accordance with part 10.1.1 of the section 327 MOU, FRA and 
CHSRA have established performance measures that CHSRA will seek to 
attain and that FRA will consider during FRA's audits.
    CHSRA is still in the early stages of developing metrics to track 
attainment of performance measures outlined in the section 327 MOU. 
However, based on results of the audit review and interviews, the FRA 
Audit Team found that CHSRA is implementing the performances measures. 
CHSRA

[[Page 46070]]

environmental leadership staff indicated they will continue to 
implement the performances measures found in part 10 of the section 327 
MOU.

Legal Sufficiency

    CHSRA conducts a legal sufficiency review at various stages of the 
environmental review process, consistent with existing internal 
procedures. This review is generally conducted by outside counsel and 
CHSRA attorneys. CHSRA attorneys are responsible for making the final 
written determination regarding legal sufficiency of EISs prior to 
their publication.

Finalizing the Report

    FRA published the draft version of this report in the Federal 
Register on April 21, 2021, (86 FR 20787), and made it available for 
public review and comment for 30 days in accordance with 23 U.S.C. 
327(g). FRA received one response to the Federal Register notice during 
the public comment period for the draft report, from the American Road 
and Transportation Builders Association. This comment outlined its 
general support for the STPD Program. FRA considered this comment and 
determined that it did not require changes in the content of the draft 
report. This is FRA's final version of the audit report.

    Issued in Washington, DC.
Amitabha Bose,
Deputy Administrator.
[FR Doc. 2021-17545 Filed 8-16-21; 8:45 am]
BILLING CODE 4910-06-P


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