[Federal Register Volume 73, Number 185 (Tuesday, September 23, 2008)]
[Notices]
[Pages 54884-54888]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-22131]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
[FHWA Docket No. FHWA-2008-0053]
Surface Transportation Project Delivery Pilot Program; Caltrans
Audit Report.
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Final report.
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SUMMARY: Section 6005 of the Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users (SAFETEA-LU) established
the Surface Transportation Project Delivery Pilot Program, codified at
23 U.S.C. 327. To ensure compliance by each State participating in the
Pilot Program, 23 U.S.C. 327(g) mandates semiannual audits during each
of the first 2 years of State participation. This final report presents
the findings from the first FHWA audit of the California Department of
Transportation (Caltrans) under the pilot program.
FOR FURTHER INFORMATION CONTACT: Ms. Ruth Rentch, Office of Project
Development and Environmental Review, (202) 366-2034,
Ruth.Rentch@dot.gov, or Mr. Michael Harkins, Office of the Chief
Counsel, (202) 366-4928, Michael.Harkins@dot.gov, Federal Highway
Administration, Department of Transportation, 1200 New Jersey Avenue,
SE., Washington, DC 20590. Office hours are from 7:45 a.m. to 4:15
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 Office
of the Federal Register's home page at http://www.archives.gov and the
Government Printing Office's Web site at http://www.access.gpo.gov.
Background
Section 6005 of the Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users (SAFETEA-LU) (codified at
23 U.S.C. 327) established a pilot program to allow up to five States
to assume the Secretary of Transportation's responsibilities for
environmental review, consultation, or other actions under any Federal
environmental law pertaining to the review or approval of highway
projects. In order to be selected for the pilot program, a State must
submit an application to the Secretary.
On June 29, 2007, Caltrans and FHWA entered into a Memorandum of
Understanding (MOU) that established the assignments to and assumptions
of responsibility to Caltrans. Under the MOU, Caltrans assumed the
majority of FHWA's responsibilities under the National Environmental
Policy Act, as well as the FHWA's responsibilities under other Federal
environmental laws for most highway projects in California.
To ensure compliance by each State participating in the Pilot
Program, 23 U.S.C. 327(g) requires the Secretary to conduct semiannual
audits during each of the first 2 years of State participation; and
annual audits during each subsequent year of State participation. The
results of each audit must be presented in the form of an audit report
and be made available for public comment. The FHWA solicited comments
on the first audit report in a Federal Register Notice published on
June 2, 2008, at 73 FR 31536. The FHWA received one comment which was
supportive of the draft audit report. This notice provides the final
draft of the first FHWA audit report for Caltrans under the pilot
program.
Authority: Section 6005 of Pub. L. 109-59; 23 U.S.C. 315 and
327.
[[Page 54885]]
Issued on: September 16, 2008.
Thomas J. Madison, Jr.,
Federal Highway Administrator.
Surface Transportation Project Delivery Pilot Program--FHWA Audit of
Caltrans, January 29-31, 2008
Background
The Safe, Accountable, Flexible, Efficient Transportation Equity
Act: A Legacy for Users (SAFETEA-LU) section 6005(a) established the
Surface Transportation Project Delivery Pilot Program (Pilot Program),
codified at Title 23, United States Code (U.S.C.), section 327. The
Section 6005 Pilot Program allows the Secretary to assign, and the
State to assume, the Secretary of Transportation's (Secretary)
responsibilities under the National Environmental Policy Act (NEPA) for
one or more highway projects. Upon assigning NEPA responsibilities, the
Secretary may further assign to the State all or part of the
Secretary's responsibilities for environmental review, consultation, or
other action required under any Federal environmental law pertaining to
the review of a specific highway project. When a State assumes the
Secretary's responsibilities under this program, the State becomes
solely responsible and liable for carrying out the responsibilities it
has assumed, in lieu of the Federal Highway Administration (FHWA).
To ensure compliance by each State participating in the Pilot
Program, 23 U.S.C. 327(g) mandates that FHWA, on behalf of the
Secretary, conduct semiannual audits during each of the first 2 years
of State participation; and annual audits during each subsequent year
of State participation. The focus of the FHWA audits is to assess a
pilot State's compliance with the Memorandum of Understanding (MOU) \1\
and applicable Federal laws and policies, to collect information needed
to evaluate the success of the Pilot Program, to evaluate pilot State
progress toward achieving its performance measures, and to collect
information needed for the Secretary's annual report to Congress on the
administration of the Pilot Program. Additionally, 23 U.S.C. 327(g)
requires FHWA to present the results of each audit in the form of an
audit report. This audit report was published in the Federal Register
June 2, 2008, at 73 FR 31536 with a request for comments (Docket Number
FHWA-2008-0053). The 60-day comment period closed August 1, 2008, with
one comment received. In compliance with 23 U.S.C. 327(g)B, FHWA has
responded to the comment and published the final report in the Federal
Register no later than 60 days after the date on which the period for
public comment closed.
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\1\ Caltrans MOU available at http://environment.fhwa.dot.gov/
strmlng/safe_cdot_pilot.asp.
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The California Department of Transportation (Caltrans) published
its Application for Assumption (Application) under the Pilot Program on
March 14, 2007, and made it available for public comment for 30 days.
After considering public comments, Caltrans submitted its application
to FHWA on May 21, 2007, and FHWA, after soliciting the views of other
Federal agencies, reviewed and approved the application. Then on June
29, 2007, Caltrans and FHWA entered into an MOU that established the
assignments to and assumptions of responsibility to Caltrans, which
became effective July 1, 2007. Under the MOU, Caltrans assumed the
majority of FHWA's responsibilities under NEPA, as well as FHWA's
responsibilities under other Federal environmental laws for most
highway projects in California. Caltrans' participation in the Pilot
Program will be effective through August 2011.
In order to meet the audit requirements specified in SAFETEA-LU,
FHWA contracted with consultants who have expertise in compliance
auditing to assist FHWA in developing the audit processes and
procedures for the Pilot Program. Training was provided to the audit
team, FHWA, and Caltrans staff in two phases:
1. Basics of Compliance Auditing (January 2007); and
2. Development of the Pilot Program Audit Process and Procedures
(August 2007).
The August 2007 audit training included specific Pilot Program
auditing processes and procedures. The auditors received training on
each core audit area to be evaluated during FHWA audits of each pilot
State's Program. The core audit areas to be evaluated are: Program
management; records and documentation management; quality control and
quality assurance processes; legal sufficiency; performance measures;
and training.
Scope of the Audit
The Caltrans' Pilot Program audit was conducted by the FHWA audit
team in California from January 29 through January 31, 2008. The audit,
as required in SAFETEA-LU, assessed Caltrans' compliance with the roles
and responsibilities it assumed in the MOU and also provided
recommendations to assist Caltrans in creating a successful Pilot
Program.
As this was the first FHWA audit of Caltrans' participation in the
Pilot Program, it was designed to begin the audit sampling process. The
audit sample included fundamental processes and procedures the State
put in place to carry out the assumptions of the roles and
responsibilities set forth in the MOU. Key sample areas included Pilot
Program staffing resources, training, legal sufficiency, and the
implementation of processes and procedures to support assumed
responsibilities. The sampling process also included a geographic
element, as the audit included onsite visits to two Caltrans locations,
the Caltrans Headquarters office in Sacramento, and its District 4
Office in Oakland. Future audits will include onsite visits to other
Caltrans Districts.
While the six core audit areas identified and discussed during the
August 2007 training serve as the basis for each Pilot Program audit,
it is not expected that each audit will address all six core audit
areas. For the first audit, FHWA selected core audit areas for review
based on professional auditing experience, statistical techniques
(where appropriate), interviews with Federal resource agencies, and an
evaluation of background information provided by Caltrans prior to the
onsite audit. All Pilot Program areas for which compliance is required
under the MOU will be evaluated cumulatively by FHWA in future audits.
Future FHWA Pilot Program audits will also follow up on findings from
previous FHWA Pilot Program audits.
Audit Process and Implementation
Each FHWA audit conducted under the Pilot Program is designed to
ensure a pilot State's compliance with the commitments in its MOU with
FHWA. FHWA will not evaluate specific project-related decisions made by
the State as these decisions are the sole responsibility of the pilot
State. However, the scope of the FHWA audits does include reviewing the
processes and procedures used by the pilot State to reach project
decisions in compliance with MOU Section 3.2.
Also, Caltrans committed in its Application (which is incorporated
into the MOU in section 1.1.2) to implement specific processes to
strengthen its environmental procedures in order to assume the
responsibilities assigned by FHWA under the Pilot Program. The FHWA
Pilot Program audits will review how Caltrans is meeting each of these
commitments as well as the
[[Page 54886]]
performance of the Pilot Program in the core audit areas previously
described.
The Caltrans' Pilot Program commitments address:
Organization and Procedures under the Pilot Program
Expanded Quality Control Procedures
Independent Environmental Decisionmaking
Determining the NEPA Class of Action
Consultation and Coordination with Resource Agencies
Issue Identification and Conflict Resolution Procedures
Record Keeping and Retention
Expanded Internal Monitoring and Process Reviews
Performance Measures To Assess the Pilot Program
Training To Implement the Pilot Program
Legal Sufficiency Review
The FHWA audit team included representatives from the following
offices or agencies:
FHWA Office of Project Development and Environmental
Review
FHWA Office of Chief Counsel
FHWA Alaska Division Office
FHWA Resource Center Environmental Team
Volpe National Transportation Systems Center
Advisory Council on Historic Preservation
From January 29 through January 31, 2008, the audit team conducted
the onsite audit and evaluated the core Pilot Program areas associated
with program management, training, records and documentation
management, and legal sufficiency at both Caltrans Headquarters and
District level. The onsite audit consisted of interviews with more than
40 Caltrans staff at Headquarters and in the Districts for both the
Capital and Local Assistance programs, as well as 11 members of
Caltrans' legal staff at Headquarters and in field offices. The audit
team interviewed a cross-section of staff including top senior
managers, senior environmental planners, associate planners, and
technical experts. Caltrans staff at several Districts were contacted
by telephone and a portion of the audit team visited the District 4
Office in Oakland. The team also reviewed project documentation
associated with the projects provided to the FHWA California Division
Office.
FHWA acknowledges that Caltrans identified specific issues during
its first self-assessment performed under the Pilot Program as required
under MOU section 8.2.6. During the FHWA onsite audit, Caltrans
indicated that it had begun to implement corrective actions to address
some issues identified in its first self-assessment. Some issues
identified in the Caltrans self-assessment may overlap with FHWA
findings in this audit report. In part, FHWA conducts each Pilot
Program audit to evaluate assumed responsibilities and to obtain
evidence to support the basis for each audit finding. Therefore, this
audit report documents findings within the scope of the audit and as of
the dates of the onsite portion of the audit. FHWA does acknowledge
that some deficiencies identified in this audit report occurred during
the first 3 months of Pilot Program operations.
In accordance with MOU section 11.4.1, FHWA provided Caltrans with
a 30-day comment period to review this draft report. FHWA has reviewed
the comments received from Caltrans and has revised sections of the
draft report where appropriate.
Overall Audit Opinion
As this is a Pilot Program, it is expected that a learning curve is
required. As such, Caltrans has made reasonable progress in
implementing the start-up phase of Pilot Program operations and
Caltrans is learning how to operate this new Pilot Program effectively.
Based on the information reviewed, it is the audit team's opinion that
to date, Caltrans has been carrying out the responsibilities it has
assumed in keeping with the intent of the MOU. The Pilot Program in
California is proceeding through the start-up phase. During the onsite
audit, Caltrans staff and management indicated ongoing interest in
obtaining constructive feedback on successes and areas for improvement.
By addressing the findings in this report, Caltrans will help move the
program toward success.
Findings
The FHWA audit team carefully examined Pilot Program areas to
assess compliance in accordance with established criteria (i.e., MOU,
Application for Assumption). The time period covered in this first
audit report is from the start of the Pilot Program (July 1, 2007)
through completion of the first onsite audit (January 31, 2008). This
report presents audit findings in three areas:
Compliant--Audit verified that a process, procedure or
other component of the Pilot Program meets a stated commitment in the
Application for Assumption and/or MOU.
Needs Improvement--Audit determined that a process,
procedure or other component of the Pilot Program as specified in the
Application for Assumption and/or MOU is not fully implemented to
achieve the stated commitment or the process or procedure implemented
is not functioning at a level necessary to ensure the stated commitment
is satisfied. Action is recommended to ensure success.
Deficient--Audit was unable to verify if a process,
procedure or other component of the Pilot Program met the stated
commitment in the Application for Assumption and/or MOU. Action is
required to improve the process, procedure or other component prior to
the next audit; or
Audit determined that a process, procedure or other component of
the Pilot Program did not meet the stated commitment in the Application
for Assumption and/or MOU. Corrective action is required prior to the
next audit.
Summary Findings
Findings--Compliant
(C1) Legal Sufficiency--Caltrans' Legal Division has developed a
consistent process to conduct formal legal sufficiency reviews by
attorneys (per 23 Code of Federal Regulations Sec. Sec. 771.125(b) and
771.135 (k) \2\) and has provided basic legal sufficiency training to
each reviewing attorney, in compliance with MOU section 8.2.5 and
Section 773.106(b)(3)(iii) of Caltrans' Application. (Note: An
evaluation of the implementation of the legal sufficiency review
process could not be performed because no legal sufficiency
determinations had been completed under the Pilot Program as of the
date of the FHWA audit.)
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\2\ Effective April 11, 2008, FHWA's Section 4(f) regulation has
been re-codified as 23 CFR part 774. The legal sufficiency review
requirement for Final Section 4(f) Evaluations is now found at 23
CFR 774.7(d).
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(C2) Establish Pilot Program Policies and Procedures--Caltrans
currently, in general, complies with MOU section 1.1.2 commitments to
establish Pilot Program policy and procedural documentation (as
detailed in Caltrans' Application).
Pilot Program policies and procedures are described in the
Caltrans' Application sections ``Overview of Caltrans'' Standard
Environmental Reference (SER),'' ``Other Guidance,'' and ``Appendix
C.'' Caltrans maintains the SER, a four volume Environmental handbook,
as a single on-line policy and procedural reference focusing on
statutory and regulatory requirements for environmental documents,
supporting technical studies, and the
[[Page 54887]]
procedures for processing these reports. The SER addresses compliance
with NEPA, the California Environmental Quality Act (CEQA), and other
applicable Federal and State laws, executive orders, regulations,
guidance documents, and policies. Caltrans added Chapter 38: ``NEPA
Delegation,'' to Volume 1 of the SER to include the majority of the
policies and procedures associated with administering the Pilot
Program. However, other sections in the SER including ``Policy Memos''
contain information on the Pilot Program. In addition to the SER, a
number of manuals and other forms of guidance on Caltrans Web sites
include information on various aspects of processes associated with the
Pilot Program. Most notably, Chapter 6 of the Local Assistance Program
Manual for Local Assistance Projects Off the State Highway System
provides detailed guidance on preparing environmental documents for
local agency projects and also refers users to the SER.
(C3) Background NEPA Training--Caltrans' existing Environmental
Staff Development Program, outlined in the Application, has processes
in place to ensure that Environmental Staff involved in NEPA
documentation have the underlying foundational skill sets required in
addition to the added skills required to address responsibilities under
the Pilot Program. To achieve this, the Environmental Staff Development
Program includes numerous processes, including an annual needs
assessment, to evaluate the training needs of the environmental staff
at each of Caltrans' 12 districts. These processes help to ensure
ongoing compliance with the overall Caltrans' Application commitment to
ongoing staff development. (Note: Specific skills required for the
Pilot Program are discussed under separate findings.)
(C4) Training Plan--Caltrans conducted a training needs assessment
specific to the Pilot Program and developed a training plan titled
``Caltrans Surface Transportation Project Delivery Pilot Program
Training Plan (Oct. 1, 2007)'' in compliance with section 12.1.2 of the
MOU.
(C5) Interagency Agreements that Involve Signatories in Addition to
FHWA and Caltrans--Caltrans complied with MOU section 5.1.5 as it
pertains to the National Historic Preservation Act, Section 106
Programmatic Agreement (PA). Caltrans completed addenda to the PA
within 6 months after the effective date of the MOU to reflect
Caltrans' assignment of authority under the Pilot Program.
(C6) State Commitment of Resources--The initial evaluation of
resources to implement the Pilot Program and the assignment of
resources, as of the date of the first audit, is compliant with MOU
section 4.2.2, as demonstrated by:
a. Creation of eight new Caltrans positions (Person Years or PY,
equivalent to the Federal Full Time Equivalent or FTE) to support Pilot
Program implementation. These new positions include two in the Caltrans
Headquarters Division of Environmental Analysis (one NEPA Delegation
Manager, one Statewide Audit Coordinator) and six new positions in the
Caltrans Division of Local Assistance, Office of NEPA Delegation and
Environmental Procedures (one Local Assistance NEPA Delegation and
Environmental Coordinator and five Local Assistance NEPA Delegation
Coordinators).
b. Assigning additional responsibilities to existing Caltrans
Headquarters staff in the areas of Legal Sufficiency, Training, and
Local Assistance, as well as expanding the responsibilities of four
Environmental Coordinators. To date, these responsibilities have been
accommodated within the work schedules of these positions.
c. Continuing and expanding the use of technical specialists (e.g.,
Biologists, Cultural Resource specialists) and generalists (e.g.,
Senior Environmental Planners) from Caltrans' Capital Projects section
to assist, as needed, Caltrans' Local Assistance section with the
review and approval of NEPA program elements. The reallocation of
resources is conducted on an ongoing basis to meet needs (under the
Pilot Program and in general) as they are identified.
d. Maintaining organizational and staffing capabilities to
effectively carry out the responsibilities assumed under MOU sections
4.2.2 and 4.2.3 pertaining to section 106 of the National Historic
Preservation Act.
Findings--Needs Improvement
(N1) Quality Assurance/Quality Control (QA/QC) Process
Implementation--The Caltrans QA/QC process developed to comply with MOU
section 8.2.5 has not been consistently implemented for all projects
assumed under the Pilot Program. Caltrans personnel did not demonstrate
a consistent understanding of the steps in the QA/QC process. As staff
use and apply the QA/QC procedures, Caltrans needs to actively monitor
conformance with its procedures and, as needed, assess and correct the
root causes behind areas of weakness in execution.
(N2) QA/QC Process Related to SER Chapter 38 Procedural and Policy
Changes--MOU section 8.2.5 requires that Caltrans carry out regular QA/
QC activities to ensure that the assumed responsibilities are conducted
in accordance with the MOU. While some SER procedural and policy
changes are addressed through memoranda or e-mails based on the level
of importance, no system existed at the time of the audit to track all
policy changes, thereby affecting the QA/QC of SER changes. The audit
identified that a recent revision to SER Chapter 38 resulted in the
erroneous omission of Environmental Impact Statements (EISs) from the
list of environmental documents required to include a statement on the
document cover page regarding Caltrans' assumption of responsibility
under 23 U.S.C. 327 and MOU section 3.2.5.
(N3) Environmental Document Protocols--Class of Action
Determination--The audit team was unable to identify through a review
of Pilot Program policies and procedures specified in SER Chapter 38
how a class of action determination is documented. Caltrans staff
interviewed indicated that an informal agreement exists to use e-mail
correspondence to document decisions on class of action determinations.
It is recommended that Caltrans acknowledge in SER Chapter 38
acceptable options for documentation of class of action determinations.
(N4) Documentation of Pilot Program Procedures in SER 38--SER
Chapter 38 requires that the signatory of each environment document be
informed of the completion of the environmental document QA/QC review
process before signing the document. It is recommended that Caltrans
acknowledge in SER Chapter 38 acceptable options to convey the
recommendation to the signatory official that all QA/QC review
certification forms have been completed.
(N5) Execution of the Legal Sufficiency Review Process--The first
environmental document submitted for formal legal sufficiency review
was not submitted in accordance with the procedures specified in the
October 15, 2007, memorandum titled: ``Procedures for Determining Legal
Sufficiency for Environmental Documents under the NEPA Pilot Program''
(nor, by reference, DEA's July 2, 2007, memorandum, ``Environmental
Document Quality Control Program under the NEPA Pilot Program''). As
this new process comes into use, Caltrans should actively monitor
conformance and provide additional training as needed.
(N6) Pilot Program Self-Assessment--Caltrans' self-assessment
process needs
[[Page 54888]]
improvement to ensure it fully complies with MOU section 8.2.6.
Specifically, the first self-assessment conducted by Caltrans under the
Pilot Program did not correlate each identified issue needing
improvement to the corrective action(s) taken to address each issue.
Findings--Deficient
(D1) QA/QC Process--Caltrans requires each environmental document
to be reviewed according to the policy memo titled ``Environmental
Document Quality Control Program under the NEPA Pilot Program (July 2,
2007).'' Several deficiencies exist with the quality control process
detailed in the aforementioned policy memo, SER Chapter 38, and as
required by MOU section 8.2.5. These deficiencies are:
a. Completion of Quality Control Certification Forms. The required
Internal and External Certification forms used in the environmental
document review process were not consistently completed prior to the
approval of each environmental document. The QC policy memo requires
that ``all staff personnel who have served as a reviewer on a project
document shall sign a Quality Control Certification Form at the
conclusion of their review. The reviewer's signature certifies that the
document meets professional standards and Federal and State
requirements in the reviewer's area of expertise, and is consistent
with the SER and annotated outlines.'' Seven of 11 documents examined
identified where the signatory approved the environmental document
prior to the completion of the document review process (i.e., before
the Quality Control Certification Form was completed).
b. Inconsistent Completion of the Environmental Document
Preparation and Review Tool Checklist and the Resource/Technical
Specialist Review Certification on the Internal and External Quality
Control Certification Forms. For EAs and EISs, the specific resource
topics identified in the Environmental Document Preparation and Review
Tool Checklist were not always consistent with the resource topics
indicated on the Resource/Technical Specialist Review Certification
forms for the same document.
c. The Peer Reviewer for 3 of 11 environmental documents examined
under the audit did not meet the requirement in SER Chapter 38 to be
``a staff member who has not participated in, supervised or technically
reviewed the project.''
(D2) Pilot Program Self-Assessment--Caltrans' self-assessment
process failed to fully comply with MOU section 8.2.6 which requires
the identification of ``any areas needing improvement.'' The Caltrans
self-assessment (which reviewed the completion of the Quality Control
Certification forms) did not identify that in some cases the peer
reviewer function was not performed according to SER Chapter 38 policy.
The policy requires an independent review by environmental staff not
otherwise involved in the project. The self assessment did not identify
that on 3 of 11 QA/QC certification forms (reviewed under this audit
and the self assessment) used on EA and EIS projects, the person
signing as the peer reviewer also signed as a technical expert.
(D3) Records Management--The project filing system in place at
District 4 did not meet the Caltrans Uniform Filing System requirements
as specified in the ``Record Keeping and Retention'' section of the
Caltrans Application. This determination was made by the Audit Team
through interviews with district personnel during the on-site audit.
The Uniform Filing System is the records management method chosen by
Caltrans to comply with the records retention requirements in MOU
section 8.3. This filing system was not in use and was not implemented
as described in the Application and SER Chapter 38.
(D4) Statement Regarding Assumption of Responsibility--MOU section
3.2.5 requires language regarding Caltrans' assumption of
responsibility under 23 U.S.C. 327 be included on the cover page of
each environmental document for all assumed Pilot Program projects. The
cover pages for two Draft EIS documents and one EA reviewed during the
audit did not include this required statement.
Response to Comments and Finalization of Report
Only one comment was received by FHWA during the 60-day comment
period for the draft audit report. This comment was submitted by the
Caltrans on July 31, 2008. Caltrans wished to thank FHWA for the
opportunity to participate in the pilot program, an ``opportunity to
test a new model for implementing the Secretary of transportation's
environmental responsibilities.'' Caltrans also stated that their
relationship with FHWA continues to be ``strong and healthy.'' Their
comment also stated that they were pleased with the FHWA audit opinion.
They take the pilot program responsibilities and commitments seriously
and appreciate FHWA's audit input and findings as they assist Caltrans
in continuous improvement.
The FHWA feels that there was no need to revise the draft audit
report findings to be responsive to this comment, with the exception of
making the ``Background'' section current and the addition of this
section.
[FR Doc. E8-22131 Filed 9-22-08; 8:45 am]
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