Surface Transportation Project Delivery Pilot Program; Caltrans Audit Report, 9638-9645 [2010-4432]
Download as PDF
9638
Federal Register / Vol. 75, No. 41 / Wednesday, March 3, 2010 / Notices
DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials
Safety Administration
[Docket No. PHMSA–2010–0046; Notice No.
10–1]
Safety Advisory Notice: Use of
Composite Cargo Tanks Manufactured
Under DOT Special Permits
AGENCY: Pipeline and Hazardous
Materials Safety Administration
(PHMSA).
ACTION: Safety advisory notice.
SUMMARY: This safety advisory is issued
to remind all persons who manufacture
or use composite cargo tank motor
vehicles authorized under DOT special
permits of the requirement to conduct
testing to ensure that the material to be
transported in the cargo tank is
compatible with the materials used in
the construction of the cargo tank.
FOR FURTHER INFORMATION CONTACT:
Charles Hochman, Senior Advisor
(Technology), Pipeline and Hazardous
Materials Safety Administration, (202)
366–4545 or Donald Burger, Chief,
Special Permits and General Approvals,
Pipeline and Hazardous Materials Safety
Administration, (202) 366–4535.
SUPPLEMENTARY INFORMATION: The
Hazardous Materials Regulations (HMR;
49 CFR parts 171–180) contain
specifications for the design and
construction of cargo tank motor
vehicles in Part 178, Subpart J (see
§§ 178.320–178). Currently, the HMR do
not contain include a specification for
composite cargo tanks, such as fiber
reinforced plastic (FRP) or glass fiber
reinforced plastic (GFRP) cargo tanks.
Federal hazardous materials
transportation law (Federal hazmat law;
49 U.S.C. 5101 et seq.) authorizes the
Department of Transportation to issue
variances—termed special permits—
from the HMR in a way that achieves a
safety level at least equal to the safety
level required under Federal hazmat law
or consistent with the public interest
and Federal hazmat law, if a required
safety level does not exist. That
authority is delegated to the Pipeline
and Hazardous Materials Safety
Administration (PHMSA).
PHMSA has issued the following
special permits (SPs) for the
manufacture, marking, sale, and use of
FRP or GFRP cargo tank motor vehicles:
Holder
Status
9166 ...............................................
10878 .............................................
11565 .............................................
11903 .............................................
12516 .............................................
14275 .............................................
14277 .............................................
14779 .............................................
mstockstill on DSKH9S0YB1PROD with NOTICES
SP number
Comptank Corp. .........................................................
Tankcon FRP .............................................................
C.P.F. Dualam ............................................................
Comptank Corp. .........................................................
Poly-Coat Systems .....................................................
Hawk Corp. .................................................................
Ascus Technology ......................................................
Corrosion Companies .................................................
Expired ...........................................
Active .............................................
Active .............................................
Active .............................................
Active .............................................
Active .............................................
Active .............................................
Active .............................................
On December 30, 2009, a glass fiber
reinforced plastic composite cargo tank
manufactured in accordance with a
special permit (DOT–SP 11903) failed
catastrophically and released its entire
contents onto the highway. PHMSA’s
investigation of the accident concluded
that the failure resulted from the
carriage of a material in the cargo tank
that was incompatible with the
materials used in the manufacture of the
cargo tank. The material in question
reacted with and degraded the corrosion
barrier and the structural glass matrix of
the tank leading to catastrophic failure.
As demonstrated by the by the
December 30, 2009 incident, the
shipment of a material that is not
compatible with the corrosion barrier
and structural glass matrix of a
composite cargo tank can lead to a
catastrophic failure and potentially
cause serious injuries, fatalities, and
property and environmental damage.
All of the special permits identified
above contain the following
requirement:
The compatibility of the commodities and
the (FRP or GFRP) cargo tank must be based
on ASTM C 581 ‘‘Standard Test Method for
Chemical Resistance of Thermosetting Resins
Used in Glass Fiber Reinforced Structures’’.
Test reports must be maintained by the
owner or manufacturer for as long as the
cargo tank remains in active service.
VerDate Nov<24>2008
16:08 Mar 02, 2010
Jkt 220001
PHMSA is concerned that owners and
manufacturers of composite cargo tanks
are not performing the required
compatibility testing or maintaining test
reports. To prevent another incident
similar to the one that occurred on
December 20, 2009, this advisory
reminds all persons involved in the
manufacture and use of composite cargo
tank motor vehicles authorized under
DOT special permits of the requirement
to perform compatibility testing. Failure
to perform the required compatibility
testing and to maintain the test reports
may result in the suspension or
termination of the special permit as well
as civil or criminal penalties.
Persons who offer for transportation
or transport hazardous materials in
violation of applicable HMR
requirements may be subject to
significant civil penalties and criminal
fines and imprisonment. The maximum
penalties depend on several factors,
including the nature and circumstances,
extent and gravity, and severity of the
consequences of the violation, but can
range up to $100,000 for a civil penalty
PO 00000
Frm 00067
Fmt 4703
Sfmt 4703
Expiration date
12/31/2009
9/30/2010
3/31/2010
10/31/2010
11/30/2010
12/31/2011
11/30/2012
11/30/2011
and $500,000 and ten years in jail for a
criminal penalty.
Magdy El-Sibaie,
Acting Associate Administrator for
Hazardous Materials Safety.
[FR Doc. 2010–4318 Filed 3–2–10; 8:45 am]
BILLING CODE 4910–60–P
DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
[FHWA Docket No. FHWA–2009–0119]
Surface Transportation Project
Delivery Pilot Program; Caltrans Audit
Report
AGENCY: Federal Highway
Administration (FHWA), DOT.
ACTION: Final report.
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 fourth
FHWA audit of the California
E:\FR\FM\03MRN1.SGM
03MRN1
Federal Register / Vol. 75, No. 41 / Wednesday, March 3, 2010 / Notices
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 https://
www.archives.gov and the Government
Printing Office’s Web site at https://
www.access.gpo.gov.
mstockstill on DSKH9S0YB1PROD with NOTICES
Background
Section 6005 of 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 fourth audit report in
a Federal Register Notice published on
December 23, 2009, at 74 FR 68308. The
FHWA received no comments. This
notice provides the final draft of the
fourth FHWA audit report for Caltrans
under the pilot program.
VerDate Nov<24>2008
16:08 Mar 02, 2010
Jkt 220001
Authority: Section 6005 of Pub. L. 109–
59; 23 U.S.C. 315 and 327; 49 CFR 1.48.
Issued on: February 23, 2010.
Victor M. Mendez,
Administrator.
Surface Transportation Project Delivery
Pilot Program Federal Highway
Administration Audit of California
Department of Transportation July 27–
31, 2009
Introduction
Overall Audit Opinion
Based on the information reviewed, it
is the Federal Highway Administration
(FHWA) audit team’s opinion that as of
July 31, the California Department of
Transportation (Caltrans) has continued
to make progress toward meeting all
responsibilities assumed under the
Surface Transportation Project Delivery
Pilot Program (Pilot Program), as
specified in the Memorandum of
Understanding (MOU) 1 with FHWA
and in the Caltrans Application for
Assumption (Application).
With the completion of FHWA’s
fourth audit, Caltrans has been
operating under the Pilot Program for 2
years. In compliance with the time
specifications for the required audits,
FHWA has completed the four
semiannual audits in the first 2 years of
State participation. As required under
the Pilot Program, FHWA audits of
Caltrans will now be on an annual basis.
During the four audits conducted, the
audit team has completed on-site audits
at 9 of the 12 Caltrans Districts and the
remaining Districts were within the
scope of the Caltrans Regional Offices
that were audited. The audit team
continues to identify significant
differences across the Districts in terms
of the Pilot Program. Example of such
differences include: resource
availability and allocation; methods of
implementation; processes and their
improvement; and progress toward
meeting all commitments. It is the audit
team’s opinion that the highly
decentralized nature of Caltrans’
operations is a major contributing factor
to the variation observed. The
decentralized nature of the organization
necessitates clear, consistent, and
ongoing oversight by Caltrans
Headquarters over Districts’
implementation and operation of the
Pilot Program. A robust oversight
program will help foster the exchange of
information and the sharing of best
practices and resources between
Districts and will put the entire
1 Caltrans MOU between FHWA and Caltrans
available at: https://environment.fhwa.dot.gov/
strmlng/safe_cdot_pilot.asp.
PO 00000
Frm 00068
Fmt 4703
Sfmt 4703
9639
organization in a better position to more
fully implement all assumed
responsibilities and meet all Pilot
Program commitments.
The FHWA commends Caltrans for its
implementation of corrective actions in
response to previous audit findings.
However, these corrective actions and
‘‘fixes’’ have been put into practice on a
case-by-case basis. The FHWA
recommends that Caltrans develop a
departmentwide, holistic corrective
action management approach and
system that will develop and implement
an internal process review to determine
needed improvements to existing
processes and procedures.
Due to the multiyear timeframes
associated with more complex and
controversial projects, the full lifecycle
of the environmental review aspect of
project development (proceeding from
initiation of environmental studies and
concluding with the issuance of a record
of decision or equivalent decision
document) has yet to be fully realized
within the period of the Pilot Program.
Over the past 2 years, the FHWA
California Division has continued to
execute the FHWA role for 22 project
reviews and decisions excluded from
the Pilot Program. Caltrans continues to
gain experience in understanding the
resource requirements and processes
necessary to administer its Pilot
Program. It is the audit team’s opinion
that Caltrans needs to continue to refine
its approaches and resources to meet all
Pilot Program commitments, especially
given the likelihood of increasing
resource demands associated with
exclusively managing ever-more
complex and controversial projects
under the Pilot Program.
During the on-site audit, Caltrans staff
and management continued to express
ongoing interest in receiving feedback
from the FHWA audit team related to
program successes and areas in need of
improvement. By addressing all findings
in this report, Caltrans will continue to
move its program toward full
compliance with all assumed
responsibilities and meeting all Pilot
Program commitments.
Limitations of the Audit
The conclusions presented in this
report are opinions based upon
interviews of selected persons
knowledgeable about past and current
activities related to the execution of the
Pilot Program at Caltrans, and a review
of selected documents over a limited
time period. The FHWA audit team’s
ability to conduct the audit and make
determinations of Caltrans successful
participation in having met its
commitments under the Pilot Program
E:\FR\FM\03MRN1.SGM
03MRN1
mstockstill on DSKH9S0YB1PROD with NOTICES
9640
Federal Register / Vol. 75, No. 41 / Wednesday, March 3, 2010 / Notices
during the four audits conducted have
been further limited by the following:
• Not every District was audited.
Each audit (including this audit)
consisted of visits to selected Caltrans
Districts.
• Incomplete project files. Project
files and associated project
documentation have, when reviewed,
not always been complete (i.e., a full
administrative record was not always
available for review by the auditor
team). This is especially true for projects
where the project or related studies
were initiated prior to commencement
of the Pilot Program.
• The limited scope of Pilot Program
activity to date conducted by Caltrans.
Since Caltrans has not been operating
under the Pilot Program for the period
of time that is generally agreed to be
required to complete the full lifecycle of
most Environmental Impact Statements
(EIS) and other complex projects,
FHWA is not yet able to fully determine
how Caltrans complies with all the
responsibilities assumed in those
project situations.
• Insufficient data to determine time
savings. Similarly, it is too early in
Caltrans’ participation in the Pilot
Program, and there is not enough data
available, for FHWA to be able to report
conclusively on time savings being
achieved as a result of Caltrans
participation in the Pilot Program.
• Lack of ability to view legal
comments provided by Caltrans staff
attorneys. As in prior audits, Caltrans
did not permit access to its attorneys’
written comments on assigned
environmental documents. The inability
to document the existence (not the
substance) of such comments has made
it difficult for the audit team to
determine if the legal sufficiency
process is being implemented in an
effective—as opposed to a timely—
manner. While recognizing Caltrans’
expressed concerns about the attorneyclient privilege and acknowledging the
dialogue that has taken place regarding
these concerns and the appropriate
documentation of this process, the audit
team, mindful of the provisions of 23
CFR 1.5 as well as sections 8.1.6, 8.2.2,
and 8.2.4 of the MOU, is considering
whether documentation beyond the
timeline provided by Caltrans Legal
Division’s Legal Information Computer
System database and individual
findings of legal sufficiency is necessary
for FHWA to evaluate fully Caltrans’
compliance with these requirements.
• Distinction between the two
Categorical Exclusion (CE) assumption
processes. Since the assumption by
Caltrans of the Safe, Accountable,
Flexible, Efficient Transportation Equity
VerDate Nov<24>2008
16:08 Mar 02, 2010
Jkt 220001
Act: A Legacy for Users (SAFETEA–LU,
Pub. L. 109–59) Section 6004 CE process
is not a part of these audits, it is not
possible to validate the correctness of
determinations placing individual CEs
under the aegis of each assumed
responsibility.
• Continued errors in the quarterly
reports. Since the quarterly reports
continue to contain errors, it is difficult
to have confidence that all National
Environmental Policy Act (NEPA)
documents have been reported and thus
can be part of the FHWA audit plans.
Background
The SAFETEA–LU Section 6005(a)
established the Pilot Program, codified
at title 23, United States Code, section
327. The Pilot Program allows the
Secretary of Transportation (Secretary)
to assign, and the State to assume, the
Secretary’s responsibilities under 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 is
liable for carrying out the
responsibilities it has assumed, in lieu
of the 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 audit process is four fold: (1)
To assess a Pilot State’s compliance
with the required MOU and applicable
Federal laws and policies, (2) to collect
information needed to evaluate the
success of the Pilot Program, (3) to
evaluate Pilot State progress in meeting
its performance measures, and (4) to
collect information for use in 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 that
is published in the Federal Register.
This audit report must be made
available for public comment, and
FHWA must respond to public
comments received no later than 60
days after the date on which the period
for public comment closes. The FHWA
solicited comments on the fourth audit
report in a Federal Register Notice
PO 00000
Frm 00069
Fmt 4703
Sfmt 4703
published December 22, 2009, at 74 FR
68308. The FHWA received no
comments during the comment period.
This notice provides the final draft of
the fourth FHWA audit report for
Caltrans under the pilot program.
Caltrans published its 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
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 is effective through August
2011 (23 U.S.C 327(i)(1)).
Scope of the Audit
This is the fourth FHWA audit of the
Caltrans Pilot Program. The on-site
portion of the audit was conducted in
California from July 27 through July 31,
2009. As required in SAFETEA–LU,
each FHWA audit must assess
compliance with the roles and
responsibilities assumed by the Pilot
State in the MOU. The audit also
includes recommendations to assist
Caltrans in administering a successful
Pilot Program.
The audit primarily focused on the
continued review of compliance with
assumed responsibilities.
Prior to the on-site audit, FHWA
conducted telephone interviews with
Federal resource agency staff at the U.S.
Army Corps of Engineers (USACE), the
U.S. Fish and Wildlife Service
(USFWS), the National Park Service, the
National Oceanic and Atmospheric
Administration and the Environmental
Protection Agency regional office in
California. The on-site audit included
visits to the Caltrans Offices in District
5 (San Luis Obispo), District 7 (Los
Angeles), District 11 (San Diego), and
District 12 (Irvine). Additionally,
Caltrans legal staff was interviewed in
Sacramento and USACE office in Irvine
was visited.
This report documents findings
within the scope of the audit as of the
completion date of the on-site audit on
July 31, 2009.
E:\FR\FM\03MRN1.SGM
03MRN1
Federal Register / Vol. 75, No. 41 / Wednesday, March 3, 2010 / Notices
mstockstill on DSKH9S0YB1PROD with NOTICES
Audit Process and Implementation
The intent of each FHWA audit
completed under the Pilot Program is to
ensure that each Pilot State complies
with the commitments in its MOU with
FHWA. The FHWA does not evaluate
specific project-related decisions made
by the State because these decisions are
the sole responsibility of the Pilot State.
However, the FHWA audit scope does
include the review of the processes and
procedures (including documentation)
used by the Pilot State to reach project
decisions in compliance with MOU
section 3.2.
In addition, Caltrans committed in its
Application (incorporated by reference
in MOU 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 audits review how Caltrans is
meeting each commitment and assesses
Pilot Program performance in the core
areas specified in the Scope of the Audit
section of this report.
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 team for the fourth audit
included representatives from the
following offices or agencies:
• FHWA Office of Project
Development and Environmental
Review
• FHWA Office of the Chief Counsel
• FHWA Alaska Division Office
• FHWA Resource Center
Environmental Team
• Volpe National Transportation
Systems Center
• USFWS.
During the onsite audit, FHWA
interviewed 80 staff from the Caltrans
four District offices, Caltrans legal staff,
and the USACE. The audit team
interviewed a cross-section of staff
including top senior managers, senior
VerDate Nov<24>2008
16:08 Mar 02, 2010
Jkt 220001
environmental planners, generalists,
associate planners, and technical
experts. The audit team also reviewed
project files and records for over 45
projects managed under the Pilot
Program.
The FHWA acknowledges that
Caltrans identified specific issues
during its fourth self-assessment
performed under the Pilot Program
(required by MOU section 8.2.6), and
has established processes to address
most issues. Some issues described in
the Caltrans self assessment may
overlap with FHWA findings identified
in this audit report.
In accordance with MOU section
11.4.1, FHWA provided Caltrans with a
30-day comment period to review this
draft audit report. The FHWA reviewed
comments received from Caltrans and
revised sections of the draft report,
where appropriate, prior to publishing it
in the Federal Register for public
comment.
Status of Findings Since Last Audit
As part of the fourth audit, FHWA
evaluated the corrective actions
implemented by Caltrans in response to
the audit findings in the third audit
report.
Most of the compliant findings in the
third audit report involved specific
processes and procedures of the North
and Central Region offices. As these
offices were not visited during this
fourth audit, we cannot report on the
continuance of their compliance.
The FHWA reviewed the current
status of ‘‘Deficient’’ and ‘‘Needs
Improvement’’ audit findings identified
during the third FHWA audit in January
2009.
‘‘Deficient’’ audit findings status:
1. Quarterly Reports—The quarterly
reports Caltrans provides to FHWA
under section 8.2.7 of the MOU
continue to include an inaccurate listing
of all approvals and decisions under the
Pilot Program. This continued area of
deficiency was also reported by Caltrans
in their fourth self assessment.
2. Performance Measure—‘‘Monitor
relationships with Federal and State
resource agencies’’—Caltrans reported in
its fourth self-assessment that a survey
was conducted in early 2009 with those
Federal and State resource agencies that
it works with on Pilot Program projects.
3. Delegation of Signature Authority—
This issue has been rectified through
issuance of clarifying direction to staff.
4. Assignment of Section 6002
Responsibility under the Pilot
Program—Caltrans has revised its
Standard Environmental Reference
(SER) to correct and clarify the template
letters for inviting cooperating and
PO 00000
Frm 00070
Fmt 4703
Sfmt 4703
9641
participating agencies to participate in
an EIS project, as per section 6002 of
SAFETEA–LU.
‘‘Needs Improvement’’ audit findings:
1. Quality Assurance/Quality Control
(QA/QC) Certification Process—Ongoing
improvement was observed in the
completion of the QC certification
forms. Nevertheless incorrect and
incomplete QC certification forms were
still identified.
2. Self Assessment and Process
Reviews—As per the suggestion of this
finding, the Caltrans fourth self
assessment included review of ongoing
projects as well as completed projects.
3. Air Quality Conformity
Determinations—The project files
reviewed during the fourth audit
contained the necessary FHWA air
quality conformity determination
documentation, where applicable.
4. Project Files/Uniform File System
(UFS)—Some project files reviewed
during this audit met the requirements
of Section 8.2.4 of the MOU and SER
Chapter 38 while other files reviewed
did not meet these requirements.
5. Commitment of Resources—
Inconsistencies continued to be
observed with regard to charging time
spent on pilot program activities to the
official Pilot Program code (6DELE).
6. Training on Air Quality
Conformity—Caltrans reported in its
fourth self assessment that Air Quality
training has been offered and is to be
provided in the upcoming training plan.
7. Assignments under the Pilot
Program—Caltrans staff interviewed
indicated a better understanding of the
SAFETEA–LU Section 6002 (23 U.S.C.
139) environmental review process
requirements than indicated in the third
audit.
8. Performance Measure—‘‘Monitor
relationships with the general public’’—
The fourth Caltrans self assessment
reported a new process for monitoring
this performance measure had been
implemented. Monitoring of how the
relationships are evolving is now being
conducted.
9. Documentation of Class of Action
Determination—For projects initiated
under the Pilot Program, project files for
class of action determination reviewed
during the fourth audit, contained this
documentation.
10. Local Assistance Training Plan—
This finding was not revisited as to its
status during the fourth audit.
Effective Practices
The FHWA audit team observed the
following effective practices during the
fourth audit:
1. One Caltrans District training
coordinator implemented a system to
E:\FR\FM\03MRN1.SGM
03MRN1
9642
Federal Register / Vol. 75, No. 41 / Wednesday, March 3, 2010 / Notices
mstockstill on DSKH9S0YB1PROD with NOTICES
capture and track which employees in
that district completed online training
courses by creating and assigning a
unique billing code for time spent
taking such courses. This training
coordinator then manually input this
information into an employee’s training
plans.
2. In some Districts, electronic files
are set up and organized to mirror the
UFS headings.
3. In one Caltrans District, new
environmental staff are required to
attend an internal 23-day ‘‘boot camp’’
that introduces them to the processes,
procedures, and related information
needed for their position.
4. The use of a memorandum to the
file with a complete explanation of the
circumstances and details regarding the
‘‘down-scoping’’ of a project from an EIS
to an environmental assessment (EA), or
from an EA to a CE.
5. Explanatory notes in a project file
under one UFS tab stating where the
information for that tab is found filed
under another tab within the project
file.
Findings Definitions
The FHWA audit team carefully
examined Pilot Program areas to assess
compliance in accordance with
established criteria in the MOU and
Application. The time period covered
by this fourth audit report is from the
start of the Caltrans Pilot Program (July
1, 2007) through completion of the third
onsite audit (July 31, 2009) with the
focus of the audit on the most recent 6
month period. 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 and/or
MOU.
• Needs Improvement—Audit
determined that a process, procedure or
other component of the Pilot Program as
specified in the Application 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
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 and/or
VerDate Nov<24>2008
16:08 Mar 02, 2010
Jkt 220001
MOU. Corrective action is required prior
to the next audit. or
Audit determined that for a past
Needs Improvement finding, the rate of
corrective action has not proceeded in a
timely manner; is not on the path to
timely resolution of the finding.
Summary of Findings—July 2009
Compliant
C1) Legal Sufficiency Timeline—
Caltrans’ Legal Division has developed
a consistent process to conduct required
legal sufficiency reviews by attorneys
(per 23 CFR 771.125(b) and 774.7(d)).
Based on interviews with staff and
information provided during the audit,
legal reviews of NEPA and Section 4(f)
of the U.S. DOT Act of 1966 (Section
4(f)) documents appear to be conducted
within the times allotted by Caltrans
internal performance goals.
Needs Improvement
N1) Inadequate Guidance in the
SER—Section 8.2.5 of the MOU requires
‘‘At a minimum, Caltrans’ quality
control and quality assurance activities
will include the review and monitoring
of its processes relating to project
decisions, environmental analysis,
project file documentation, checking for
errors and omissions, legal sufficiency
reviews, and taking appropriate
corrective action as needed.’’ Several
instances were identified where the
guidance provided in the SER was
unclear, misleading, or incomplete. This
resulted in documents incorrectly
completed and/or processes not
implemented correctly. Examples of
such instances were:
a.) SER Chapter 38 requires that the
SEP sign the Environmental Document
Review Checklist once it is completed.
Review of project files revealed
Environmental Document Review
Checklists that were either not signed by
a Senior Environmental Planner (SEP)
or not signed at all. Additionally,
different versions of the checklist were
found in various project files, none of
which designated which signature line
was to be completed by the SEP. These
various instances of noncompliance
with the SER requirement were
observed within individual Districts and
also from District to District.
b.) SER Chapter 38 guidance does not
distinguish between the ‘‘pilot program’’
citation required to appear in individual
Section 4(f) Evaluations prepared for
Section 6005 CE projects and those
prepared for Section 6004 CE projects.
The statement in the SER regarding the
project being carried out by Caltrans
under its assumption of responsibility
pursuant to 23 U.S.C. 327 is only
PO 00000
Frm 00071
Fmt 4703
Sfmt 4703
applicable to Section 4(f) evaluations for
Section 6005 CEs under the Pilot
Program. The CEs completed by
Caltrans under the Section 6004 CE
assumption should refer to 23 U.S.C.
326. Through interviews and project file
reviews, confusion about this was
identified and, at least in some cases,
the apparent misunderstanding that the
same language is to be used for both
Section 6004 and Section 6005 CEs with
individual Section 4(f) evaluations.
c.) SER Chapter 33 discusses the
process and documentation for
conducting NEPA re-evaluations (to
comply with 23 CFR 771.129). The
chapter, last updated November 10,
2008, does not provide clear direction
on how to process a re-evaluation under
the Pilot Program. The chapter includes
a reference to a joint FHWA/Caltrans
guidance on NEPA consultation and reevaluation, dated June 21, 2007, that
states, ‘‘When the NEPA Pilot Program
(NEPA assumption) begins, the joint
guidance and the NEPA/CEQA
Revalidation form will be revised as
necessary.’’ The FHWA/Caltrans joint
guidance has not been revised to take
the Pilot Program into consideration.
There is a link to a review form that
matches the form contained in the joint
FHWA/Caltrans guidance and has
FHWA removed as having approval
authority; however, there is no guidance
on the appropriate use of the form.
d.) SER Chapter 25 references FHWA
Order 6640.2 FHWA Actions to address
Environmental Justice in minority and
Low-Income Populations; however, the
flowchart and guidance provided in that
chapter do not fully reflect the
definition of Disproportionately High
and Adverse Effect on Minority and
Low-Income Populations provided in
that Order, nor does it clearly state the
need to identify population served and/
or affected by race, or national origin,
and income level when determining
such effects. The SER chapter provides
discussion points and some sources for
reference material, but does not provide
specific guidance to NEPA practitioners
for how to integrate a project level
review into a NEPA process, to
document proposed steps to guard
against disproportionately high and
adverse effects, or to document
meaningful public involvement
opportunities and consider the results.
N2) Procedural and Substantive
Requirements—MOU Section 5.1.4
states that Caltrans will work with all
other appropriate Federal agencies
concerning the laws, guidance, and
policies that such other Federal agencies
are responsible for administering. Areas
in need of improvement in working
with Federal agencies included:
E:\FR\FM\03MRN1.SGM
03MRN1
Federal Register / Vol. 75, No. 41 / Wednesday, March 3, 2010 / Notices
a.) Through interviews with USACE
and USFWS staff located in California,
instances were identified where there
was confusion as to the implementation
of the Endangered Species Act (ESA)
Section 7 process and how it is related
to the USACE permitting process.
Verbal comments were made by
resource agency staff that when working
on local agency projects, the local
project sponsors lacked clarity on the
information regarding the ESA Section 7
compliance needed for the USACE
permitting process. It was also learned
that on more than one occasion, local
agencies inappropriately acted as lead
agency for ESA Section 7 consultation
and Section 404 of the Clean Water Act
coordination.
b.) The SER Chapter 38, Consultation
and Coordination with Federal
Agencies, requires Caltrans to include
the following specific language in
consultation documents being
transmitted directly to Federal resource
agencies:
mstockstill on DSKH9S0YB1PROD with NOTICES
Caltrans is [transmitting/initiating * * *
(describe product or action)] as the NEPA
lead agency under the provisions of the
Memorandum of Understanding (MOU)
between the Federal Highway Administration
and the California Department of
Transportation Concerning the State of
California’s Participation in the Surface
Transportation Project Delivery Pilot
Program, which became effective on July 1,
2007. The MOU was signed pursuant to
Section 6005 of the 2005 Safe, Accountable,
Flexible, Efficient Transportation Equity Act:
A Legacy for Users (SAFETEA–LU) which
allows the Secretary of Transportation to
assign, and the State of California to assume,
responsibility for FHWA’s responsibilities
under other Federal environmental laws. As
this project is covered by the Pilot Program
MOU, FHWA has assigned and Caltrans has
assumed FHWA responsibility for
environmental review, consultation, and
coordination on this project. Please direct all
future correspondence on this project to
Caltrans.
A letter in a project file from Caltrans
to USFWS requesting initiation of
formal ESA Section 7 consultation did
not include the required language
regarding the responsibilities assumed
by Caltrans.
N3) Section 4(f) Documentation—
MOU Section 5.1.1 affirms that Caltrans
is subject to the same procedural and
substantive requirements that apply to
the DOT in carrying out the
responsibilities assumed under the Pilot
Program. Through project file reviews
and interviews with Caltrans staff,
inconsistencies were identified with the
documentation required in carrying out
the Section 4(f) provisions. These
included:
a.) For one project, no documentation
was provided in the EA or in the project
VerDate Nov<24>2008
16:08 Mar 02, 2010
Jkt 220001
file to support the assertion that
‘‘[t]emporary uses do not normally
constitute ‘use’ under Section 4(f)
policy.’’ The FHWA regulation regarding
‘‘temporary occupancies of land,’’ 23
CFR 774.13(d), states in pertinent part
that there must be documented
agreement with the official with
jurisdiction over the Section 4(f)
resource that the requisite conditions
have been met. 23 CFR 774.13(d)(5).
b.) Two project files that together
contained inadequate documentation of
three potential Section 4(f) resources
were identified. Documentation did not
fully support statements that these
resources were not, in fact, Section 4(f)
resources. In one case, the official with
jurisdiction even disputed the statement
in the environmental document that the
subject property was not a Section 4(f)
resource and provided information to
support a Section 4(f) resource
identification. In another document,
there was an implied de minimis effect
by the use of the term; however, no
supporting documentation was
provided, nor was there any evidence of
public involvement or coordination
with the officials with jurisdiction over
the Section 4(f) resource, as required by
49 U.S.C. 303(d) and 23 CFR 774.7(b).
c.) In four project files reviewed
during the audit, documentation did not
reflect that the current Section 4(f)
regulations are being adhered to in all
NEPA processes. In these four projects,
references were made to the prior
FHWA regulations at 23 CFR 771.135
rather than to the updated regulations at
23 CFR Part 774.
N4) Circulation of a Draft Section 4(f)
Evaluation—Project file reviews and
interviews with Caltrans staff identified
confusion as to the requirements for the
circulation of the Section 4(f) Evaluation
to the Department of the Interior (DOI)
for review. In one instance, Caltrans
staff contacted the FHWA Division
Office to determine circulation
requirements and documentation
indicates that the Section 4(f)
Evaluation was sent to FHWA for
forwarding to DOI.
N5) Section 4(f) Implementation—
MOU Section 5.1.1 requires Caltrans to
be subject to the same procedural and
substantive requirements that apply to
the DOT when carrying out the
responsibilities it has assumed. Through
project file reviews and interviews of
Caltrans staff, several inconsistencies
with the implementation and general
understanding required in carrying out
the Section 4(f) provisions were
identified. These include:
a.) Text in an EA that cited the
Section 4(f) ‘‘policy’’ should have
referred to the Section 4(f) ‘‘regulations.’’
PO 00000
Frm 00072
Fmt 4703
Sfmt 4703
9643
The correct citation for this Section 4(f)
Evaluation should have been the FHWA
regulations, 23 CFR Part 774.
b.) Review of a final Environmental
Assessment/Finding of No Significant
Impact (EA/FONSI) and project files
revealed a lack of understanding
regarding the applicability of FHWA’s
Nationwide Programmatic Section 4(f)
evaluation for the rehabilitation or
replacement of historic bridges. Under
the Programmatic, all five criteria of
applicability set forth in this
programmatic must be met and the
explanation for meeting the criteria
must be included in the document and
the project file (https://
www.environment.fhwa.dot.gov/
projdev/4fbridge.asp). In addition, the
draft EA for this project reached a
Section 4(f) conclusion prior to
executing the Section 106 MOU with
the State Historic Preservation Office.
N6) Legal Division Staff—Caltrans’
Legal Division consists of four largely
autonomous offices2 serving different
regions of the State. The MOU section
4.2.2 requires Caltrans ‘‘to obtain
adequate* * * staff capability’’
including ‘‘without limitation* * *
[d]emonstrating, in a consistent manner,
the capacity to perform Caltrans’
assumed responsibilities under this
MOU and applicable Federal laws.’’ As
noted in a previous audit report,
Caltrans maintains a staff of attorneys in
each of the four offices trained to
support the Pilot Program, and tracks
the training each of these attorneys
receives related to environmental law.
The audit team notes that many of the
attorneys assigned to the Pilot Program
have a great deal of general legal
experience; however, over the life of the
Pilot it has become apparent that the
four legal offices vary widely when it
comes to attorneys with significant
experience in Federal environmental
law. During this audit, it became clear
that this inconsistency increased
following the retirement of a highly
experienced attorney near the end of
2008. This retirement has resulted in
two of Caltrans’ legal offices—each of
which serves some of Caltrans’ largest
and busiest Districts—having on staff no
attorneys with substantial experience in
Federal environmental law. It is the
audit team’s understanding that legal
sufficiency reviews are conducted
independently within these autonomous
offices, increasing the potential that
legal sufficiency reviews may be applied
in an inconsistent manner across the
State.
2 The four offices are located in Sacramento, San
Francisco, Los Angeles, and San Diego.
E:\FR\FM\03MRN1.SGM
03MRN1
mstockstill on DSKH9S0YB1PROD with NOTICES
9644
Federal Register / Vol. 75, No. 41 / Wednesday, March 3, 2010 / Notices
N7) Training—Section 4.2.2 of the
MOU requires Caltrans to maintain
adequate organizational and staff
capacity to effectively carry out the
responsibilities it has assumed under
Section 3 of the MOU. The following
inconsistencies were noted during
interviews:
a.) Interviews and personnel training
record reviews identified two tools used
by Caltrans to determine the capacity of
Caltrans staff to carry out Pilot Program
responsibilities including a Learning
Management System (LMS) and
Individual Development Plans (IDPs).
The audit team observed that these
tools, and possibly others, are used in
varying ways and with varying success
across Districts to (1) identify training
needs or gaps in areas of expertise and
(2) plan and track the training each
employee receives. Given this variation
and use of these tools and approaches,
it is unclear how District leadership
ensures that all Caltrans employees have
the capacity to carry out assigned
responsibilities assumed under the Pilot
Program and how this information can
be collected.
b.) Interviews reflected a lack of
knowledge in two areas. As is detailed
in other portions of this audit report,
several instances of inadequate staff
capacity for determining compliance
process requirements related to the
Section 4(f) and ESA Section 7
processes were observed during this
audit. This is an example of a needed
competency that does not appear to be
being met and/or being tracked. As was
also noted earlier in this report, there is
varying understanding of the reevaluation process and requires
additional training for staff to be
competent in the understanding of this
process.
c.) As the demand for and use of
online training courses increases, there
is currently no consistent method for
Caltrans to track which employees have
completed online training courses and
to incorporate this information into the
LMS and into the employee IDPs. In
order to ensure that Caltrans employees
implementing NEPA duties have the
knowledge and skills to assume the
responsibilities under Section 3 of the
MOU, Caltrans should begin to track
this information and also determine
which online training courses should be
prerequisites for performing certain
NEPA assumption activities.
N8) Maintenance of Project and
General Administrative Files—Section
8.2.4 of the MOU requires Caltrans to
maintain project and general
administrative files pertaining to its
discharge of the responsibilities
assumed under the Pilot Program.
VerDate Nov<24>2008
16:08 Mar 02, 2010
Jkt 220001
Caltrans has instituted specific
procedures for maintaining project files
and has provided training on these
procedures. Inconsistencies in the
application of these procedures,
reported in previous audit findings,
were also identified in this audit.
Inconsistencies in 12 of the 47 project
files reviewed during the audit,
including:
a.) Required project documentation
was missing from several project files.
Examples of missing documentation
included: a Biological Opinion; ESA
Section 7 concurrence documentation;
internal and external communications
related to the project; letters from the
District Local Agency Engineer to the
local agency transmitting the
Preliminary Environmental Study form
with the list of the required technical
studies for the project; and noise
abatement decision report.
b.) Some required file documentation
missing from project files was
eventually located elsewhere in the
District Office. Examples of items
missing from the project file, but
brought to auditors upon request,
included cooperating agencies’ letters,
FHWA project level air quality
conformity determinations, Caltrans’
noise abatement decision reports, a
project’s Section 106 MOA, and
evidence of the circulation of Section
4(f) documents to the DOI. Required
documentation could not be located
during the audit.
c.) The required documentation
according to 23 CFR 771.111(h)(2)(vi),
which states that the State must provide
‘‘transcript of each public hearing and a
certification that a required hearing or
hearing opportunity was offered’’ could
not be located during the audit. In two
instances, the public hearing transcript
was not found nor was any certification
(or other documentation) that a hearing
had been held.
d.) In several instances, project files
were missing required UFS tabs (though
they contained pertinent
documentation) and some sections
contained no information or explanation
as to why the tabs were missing or tab
sections were empty.
N9) Varying Oversight/Analysis of
Commitment of Resources — Section
4.2.2 of the MOU requires that ‘‘Caltrans
will maintain adequate organizational
and staff capability, including
competent and qualified consultants
where necessary or desirable, to
effectively carry out the responsibilities
it has assumed under part 3 of this
MOU. This includes, without limitation:
Æ Using appropriate environmental
technical and managerial expertise;
PO 00000
Frm 00073
Fmt 4703
Sfmt 4703
Æ Devoting adequate staff resources;
and
Æ Demonstrating, in a consistent
manner, the capacity to perform
Caltrans’ assumed responsibilities under
this MOU and applicable Federal laws.’’
Previous audits have tried to
determine how Caltrans monitors its
resources to implement the Pilot
Program, but based on audit interviews,
were unable to identify a uniform
process. Through interviews and
material reviewed during this audit, it
was determined that the existing system
used by Caltrans to track resources
showed inconsistent use of billing codes
and in one case identified an error not
previously found by Caltrans. During
the interviews with Caltrans
environmental personnel,
inconsistencies continued to be
identified in the reporting and use of
these Pilot Program codes. These
inconsistencies include:
(a) Lack of familiarity with the
activities eligible to be billed to the Pilot
Program,
(b) Lack of supervisory direction as to
what activities should be billed to the
Pilot Program;
(c) Failure to report all times eligible
for billing under the appropriate codes
for both Capital and Local Assistance
programs (codes 6DELE and 6LADELE,
respectively);
(d) Varying degrees of oversight, or no
oversight of the billing codes for the
Pilot Program performed in the Districts.
Deficient
D1) Quality Control Quality (QA/QC)
Assurance—Under the Pilot Program,
and as reflected in the language cited on
each environmental document assigned
to Caltrans per MOU Section 3.2.5,
NEPA documentation should reflect that
FHWA has no role in the environmental
review and decisionmaking process for
assigned projects. Through project file
and document reviews, three instances
were observed where in a document or
in the project file, there were references
to FHWA being involved in the
decisionmaking process.
D2) QA/QC Certification Process—
Section 8.2.5 of the MOU and SER
Chapter 38 require Caltrans staff to
review each environmental document in
accordance with the policy
memorandum titled ‘‘Environmental
Document Quality Control Program
under the NEPA Pilot Program’’ (July 2,
2007). Incomplete and incorrectly
completed QC certification forms
continue to be identified. Five of the
seven identified instances occurred in
2008. Examples of these are:
a) Four instances in which review
signatures on QA/QC forms were not
E:\FR\FM\03MRN1.SGM
03MRN1
mstockstill on DSKH9S0YB1PROD with NOTICES
Federal Register / Vol. 75, No. 41 / Wednesday, March 3, 2010 / Notices
obtained the proper sequence in
accordance with the Caltrans
established QA/QC processes;
b) Three project files where QA/QC
forms were either incomplete or
missing.
D3) Quarterly Reporting—MOU
Section 8.2.7 requires Caltrans to submit
a report to FHWA each quarter for the
first 2 years of Pilot program listing all
approvals and decisions Caltrans makes
with respect to responsibilities assumed
under the MOU. Quarterly reports
submitted by Caltrans for the first eight
quarters of Pilot program participation
were reviewed for this audit. Each of the
first seven quarterly reports has been
revised; some reports have been revised
multiple times. In summary, for the first
seven quarterly reports, a total of 63
new projects were added in report
revisions and 29 projects initially
reported were subsequently deleted.
The reporting issues spanned across the
majority of districts reporting projects,
and seven districts submitted revisions
to four or more quarterly reports.
Inaccurate project reporting has been a
consistent issue affecting the quarterly
report process and has been identified
in previous FHWA audit reports.
Among the errors discovered were
reporting errors related to incorrectly
characterizing projects (e.g., CEs under
Section 6004 and Section 6005), and
omissions associated with untimely
reporting of project approvals and
decisions by district staff (i.e., a
subsequent quarterly report included a
project that was approved in the
previous quarter). The approach used by
each district to collect project
information for the quarterly reports is
highly variable and is one key
contributor to continued reporting
inaccuracies.
The current Caltrans approach to
developing the quarterly reports
continues to be deficient. The accuracy
of the reports on project approvals and
decisions affects FHWA oversight of the
Pilot Program. For example, if Caltrans
does not report to FHWA a project being
administered under the Pilot Program,
the project may not be included in the
audit process. Additionally, now that
the FHWA onsite audit process will
move to an annual basis (semi-annual
audits were required during the first 2
years of the Pilot Program), the project
approval and decision reporting takes
on increased significance as less in-field
auditing will occur.
Response to Comments and
Finalization of Report
The FHWA received no comments
during the 30-day comment period for
the draft audit report. Therefore, the
VerDate Nov<24>2008
16:08 Mar 02, 2010
Jkt 220001
FHWA feels that there is no need to
revise the draft audit report findings and
finalizes the audit report with this
notice.
[FR Doc. 2010–4432 Filed 3–2–10; 8:45 am]
BILLING CODE 4910–22–P
DEPARTMENT OF THE TREASURY
Office of Foreign Assets Control
Additional Designations of Individuals
and Entities Pursuant to Section 804(b)
of the Foreign Narcotics Kingpin
Designation Act (‘‘Kingpin Act’’), 21
U.S.C. 1903(b)
AGENCY: Office of Foreign Assets
Control, Treasury.
ACTION: Notice.
SUMMARY: The Treasury Department’s
Office of Foreign Assets Control
(‘‘OFAC’’) is publishing the names of
seven individuals and one entity whose
property and interests in property have
been blocked pursuant to the Foreign
Narcotics Kingpin Designation Act
(‘‘Kingpin Act’’) (21 U.S.C. 1901–1908, 8
U.S.C. 1182).
DATES: The designation by the Director
of OFAC of seven individuals and one
entity identified in this notice, pursuant
to section 805(b) of the Foreign
Narcotics Kingpin Designation Act
(‘‘Kingpin Act’’), 21 U.S.C. 1904(b), is
effective on February 25, 2010.
FOR FURTHER INFORMATION CONTACT:
Assistant Director, Compliance
Outreach & Implementation, Office of
Foreign Assets Control, Department of
the Treasury, 1500 Pennsylvania
Avenue, NW. (Treasury Annex),
Washington, DC 20220, Tel.: 202/622–
2490.
SUPPLEMENTARY INFORMATION:
Electronic and Facsimile Availability
This document and additional
information concerning OFAC are
available on OFAC’s Web site (https://
www.treas.gov/ofac) or via facsimile
through a 24-hour fax-on-demand
service, tel.: 202/622–0077.
Background
The Kingpin Act became law on
December 3, 1999. The Kingpin Act
establishes a program targeting the
activities of significant foreign narcotics
traffickers and their organizations on a
worldwide basis. It provides a statutory
framework for the President to impose
sanctions against significant foreign
narcotics traffickers and their
organizations on a worldwide basis,
with the objective of denying their
PO 00000
Frm 00074
Fmt 4703
Sfmt 4703
9645
businesses and agents access to the U.S.
financial system and to the benefits of
trade and transactions involving U.S.
companies and individuals.
The Kingpin Act blocks all property
and interests in property, subject to U.S.
jurisdiction, owned or controlled by
significant foreign narcotics traffickers
as identified by the President. In
addition, the Secretary of the Treasury
consults with the Attorney General, the
Director of the Central Intelligence
Agency, the Director of the Federal
Bureau of Investigation, the
Administrator of the Drug Enforcement
Administration, the Secretary of
Defense, the Secretary of State, and the
Secretary of Homeland Security when
designating and blocking the property
and interests in property, subject to U.S.
jurisdiction, of persons who are found
to be: (1) Materially assisting in, or
providing financial or technological
support for or to, or providing goods or
services in support of, the international
narcotics trafficking activities of a
person designated pursuant to the
Kingpin Act; (2) owned, controlled, or
directed by, or acting for or on behalf of,
a person designated pursuant to the
Kingpin Act; or (3) playing a significant
role in international narcotics
trafficking.
On February 25, 2010 the Director of
OFAC designated seven individuals and
one entity whose property and interests
in property are blocked pursuant to
section 805(b) of the Foreign Narcotics
Kingpin Designation Act.
The list of additional designees is as
follows:
Individuals
1. MENDEZ VARGAS, Jose de Jesus
(a.k.a. CHAMULA; a.k.a. CHANGO;
a.k.a. CHANGO MENDEZ; a.k.a. CHUY;
a.k.a. CHUY MENDEZ; a.k.a. EL
CHANGO; a.k.a. MENDEZ VARGAS,
Jesus; a.k.a. MENDEZ, Jesus), Tazumbos,
Jalisco, Mexico; Calle Dr. Lose Luis
Mora Col Morelos, Apatzingan,
Michoacan, Mexico; Calle Carlos Salazar
Col Buenos Aires, Apatzingan,
Michoacan, Mexico; Toluca, Mexico,
Mexico; Calle Acatitla 122, Col.
Ferrocarril, Apatzingan, Mexico; Potrero
Grande de C de Paracuaro, Apatzingan,
Mexico; c/o Club Abaro, Ave Vicente
Villada, Mexico City, Municipio de
Mexico City, D.F., Mexico; DOB 28 Feb
1974; alt. DOB 18 Sep 1989; alt. DOB 6
Aug 1973; POB El Coloma, Michoacan;
alt. POB Eduardo Neri, Guerrero; alt.
POB Acapulco de Juarez, Guerrero;
nationality Mexico; C.U.R.P.
MEVJ890918HGRNRS09 (Mexico)
(individual) [SDNTK]
2. MORENO GONZALEZ, Nazario
´
˜
´
(a.k.a. CASTREJON PENA, Vıctor
E:\FR\FM\03MRN1.SGM
03MRN1
Agencies
[Federal Register Volume 75, Number 41 (Wednesday, March 3, 2010)]
[Notices]
[Pages 9638-9645]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-4432]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
[FHWA Docket No. FHWA-2009-0119]
Surface Transportation Project Delivery Pilot Program; Caltrans
Audit Report
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Final report.
-----------------------------------------------------------------------
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 fourth FHWA audit of the California
[[Page 9639]]
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 https://www.archives.gov and the
Government Printing Office's Web site at https://www.access.gpo.gov.
Background
Section 6005 of 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 fourth audit report in a Federal Register Notice published on
December 23, 2009, at 74 FR 68308. The FHWA received no comments. This
notice provides the final draft of the fourth FHWA audit report for
Caltrans under the pilot program.
Authority: Section 6005 of Pub. L. 109-59; 23 U.S.C. 315 and
327; 49 CFR 1.48.
Issued on: February 23, 2010.
Victor M. Mendez,
Administrator.
Surface Transportation Project Delivery Pilot Program Federal Highway
Administration Audit of California Department of Transportation July
27-31, 2009
Introduction
Overall Audit Opinion
Based on the information reviewed, it is the Federal Highway
Administration (FHWA) audit team's opinion that as of July 31, the
California Department of Transportation (Caltrans) has continued to
make progress toward meeting all responsibilities assumed under the
Surface Transportation Project Delivery Pilot Program (Pilot Program),
as specified in the Memorandum of Understanding (MOU) \1\ with FHWA and
in the Caltrans Application for Assumption (Application).
---------------------------------------------------------------------------
\1\ Caltrans MOU between FHWA and Caltrans available at: https://environment.fhwa.dot.gov/strmlng/safe_cdot_pilot.asp.
---------------------------------------------------------------------------
With the completion of FHWA's fourth audit, Caltrans has been
operating under the Pilot Program for 2 years. In compliance with the
time specifications for the required audits, FHWA has completed the
four semiannual audits in the first 2 years of State participation. As
required under the Pilot Program, FHWA audits of Caltrans will now be
on an annual basis. During the four audits conducted, the audit team
has completed on-site audits at 9 of the 12 Caltrans Districts and the
remaining Districts were within the scope of the Caltrans Regional
Offices that were audited. The audit team continues to identify
significant differences across the Districts in terms of the Pilot
Program. Example of such differences include: resource availability and
allocation; methods of implementation; processes and their improvement;
and progress toward meeting all commitments. It is the audit team's
opinion that the highly decentralized nature of Caltrans' operations is
a major contributing factor to the variation observed. The
decentralized nature of the organization necessitates clear,
consistent, and ongoing oversight by Caltrans Headquarters over
Districts' implementation and operation of the Pilot Program. A robust
oversight program will help foster the exchange of information and the
sharing of best practices and resources between Districts and will put
the entire organization in a better position to more fully implement
all assumed responsibilities and meet all Pilot Program commitments.
The FHWA commends Caltrans for its implementation of corrective
actions in response to previous audit findings. However, these
corrective actions and ``fixes'' have been put into practice on a case-
by-case basis. The FHWA recommends that Caltrans develop a
departmentwide, holistic corrective action management approach and
system that will develop and implement an internal process review to
determine needed improvements to existing processes and procedures.
Due to the multiyear timeframes associated with more complex and
controversial projects, the full lifecycle of the environmental review
aspect of project development (proceeding from initiation of
environmental studies and concluding with the issuance of a record of
decision or equivalent decision document) has yet to be fully realized
within the period of the Pilot Program. Over the past 2 years, the FHWA
California Division has continued to execute the FHWA role for 22
project reviews and decisions excluded from the Pilot Program. Caltrans
continues to gain experience in understanding the resource requirements
and processes necessary to administer its Pilot Program. It is the
audit team's opinion that Caltrans needs to continue to refine its
approaches and resources to meet all Pilot Program commitments,
especially given the likelihood of increasing resource demands
associated with exclusively managing ever-more complex and
controversial projects under the Pilot Program.
During the on-site audit, Caltrans staff and management continued
to express ongoing interest in receiving feedback from the FHWA audit
team related to program successes and areas in need of improvement. By
addressing all findings in this report, Caltrans will continue to move
its program toward full compliance with all assumed responsibilities
and meeting all Pilot Program commitments.
Limitations of the Audit
The conclusions presented in this report are opinions based upon
interviews of selected persons knowledgeable about past and current
activities related to the execution of the Pilot Program at Caltrans,
and a review of selected documents over a limited time period. The FHWA
audit team's ability to conduct the audit and make determinations of
Caltrans successful participation in having met its commitments under
the Pilot Program
[[Page 9640]]
during the four audits conducted have been further limited by the
following:
Not every District was audited. Each audit (including this
audit) consisted of visits to selected Caltrans Districts.
Incomplete project files. Project files and associated
project documentation have, when reviewed, not always been complete
(i.e., a full administrative record was not always available for review
by the auditor team). This is especially true for projects where the
project or related studies were initiated prior to commencement of the
Pilot Program.
The limited scope of Pilot Program activity to date
conducted by Caltrans. Since Caltrans has not been operating under the
Pilot Program for the period of time that is generally agreed to be
required to complete the full lifecycle of most Environmental Impact
Statements (EIS) and other complex projects, FHWA is not yet able to
fully determine how Caltrans complies with all the responsibilities
assumed in those project situations.
Insufficient data to determine time savings. Similarly, it
is too early in Caltrans' participation in the Pilot Program, and there
is not enough data available, for FHWA to be able to report
conclusively on time savings being achieved as a result of Caltrans
participation in the Pilot Program.
Lack of ability to view legal comments provided by
Caltrans staff attorneys. As in prior audits, Caltrans did not permit
access to its attorneys' written comments on assigned environmental
documents. The inability to document the existence (not the substance)
of such comments has made it difficult for the audit team to determine
if the legal sufficiency process is being implemented in an effective--
as opposed to a timely--manner. While recognizing Caltrans' expressed
concerns about the attorney-client privilege and acknowledging the
dialogue that has taken place regarding these concerns and the
appropriate documentation of this process, the audit team, mindful of
the provisions of 23 CFR 1.5 as well as sections 8.1.6, 8.2.2, and
8.2.4 of the MOU, is considering whether documentation beyond the
timeline provided by Caltrans Legal Division's Legal Information
Computer System database and individual findings of legal sufficiency
is necessary for FHWA to evaluate fully Caltrans' compliance with these
requirements.
Distinction between the two Categorical Exclusion (CE)
assumption processes. Since the assumption by Caltrans of the Safe,
Accountable, Flexible, Efficient Transportation Equity Act: A Legacy
for Users (SAFETEA-LU, Pub. L. 109-59) Section 6004 CE process is not a
part of these audits, it is not possible to validate the correctness of
determinations placing individual CEs under the aegis of each assumed
responsibility.
Continued errors in the quarterly reports. Since the
quarterly reports continue to contain errors, it is difficult to have
confidence that all National Environmental Policy Act (NEPA) documents
have been reported and thus can be part of the FHWA audit plans.
Background
The SAFETEA-LU Section 6005(a) established the Pilot Program,
codified at title 23, United States Code, section 327. The Pilot
Program allows the Secretary of Transportation (Secretary) to assign,
and the State to assume, the Secretary's responsibilities under 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 is liable for carrying out the responsibilities
it has assumed, in lieu of the 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 audit process is four
fold: (1) To assess a Pilot State's compliance with the required MOU
and applicable Federal laws and policies, (2) to collect information
needed to evaluate the success of the Pilot Program, (3) to evaluate
Pilot State progress in meeting its performance measures, and (4) to
collect information for use in 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 that is published in the Federal Register. This
audit report must be made available for public comment, and FHWA must
respond to public comments received no later than 60 days after the
date on which the period for public comment closes. The FHWA solicited
comments on the fourth audit report in a Federal Register Notice
published December 22, 2009, at 74 FR 68308. The FHWA received no
comments during the comment period. This notice provides the final
draft of the fourth FHWA audit report for Caltrans under the pilot
program.
Caltrans published its 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 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 is effective
through August 2011 (23 U.S.C 327(i)(1)).
Scope of the Audit
This is the fourth FHWA audit of the Caltrans Pilot Program. The
on-site portion of the audit was conducted in California from July 27
through July 31, 2009. As required in SAFETEA-LU, each FHWA audit must
assess compliance with the roles and responsibilities assumed by the
Pilot State in the MOU. The audit also includes recommendations to
assist Caltrans in administering a successful Pilot Program.
The audit primarily focused on the continued review of compliance
with assumed responsibilities.
Prior to the on-site audit, FHWA conducted telephone interviews
with Federal resource agency staff at the U.S. Army Corps of Engineers
(USACE), the U.S. Fish and Wildlife Service (USFWS), the National Park
Service, the National Oceanic and Atmospheric Administration and the
Environmental Protection Agency regional office in California. The on-
site audit included visits to the Caltrans Offices in District 5 (San
Luis Obispo), District 7 (Los Angeles), District 11 (San Diego), and
District 12 (Irvine). Additionally, Caltrans legal staff was
interviewed in Sacramento and USACE office in Irvine was visited.
This report documents findings within the scope of the audit as of
the completion date of the on-site audit on July 31, 2009.
[[Page 9641]]
Audit Process and Implementation
The intent of each FHWA audit completed under the Pilot Program is
to ensure that each Pilot State complies with the commitments in its
MOU with FHWA. The FHWA does not evaluate specific project-related
decisions made by the State because these decisions are the sole
responsibility of the Pilot State. However, the FHWA audit scope does
include the review of the processes and procedures (including
documentation) used by the Pilot State to reach project decisions in
compliance with MOU section 3.2.
In addition, Caltrans committed in its Application (incorporated by
reference in MOU 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
audits review how Caltrans is meeting each commitment and assesses
Pilot Program performance in the core areas specified in the Scope of
the Audit section of this report.
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 team for the fourth audit included representatives from
the following offices or agencies:
FHWA Office of Project Development and Environmental
Review
FHWA Office of the Chief Counsel
FHWA Alaska Division Office
FHWA Resource Center Environmental Team
Volpe National Transportation Systems Center
USFWS.
During the onsite audit, FHWA interviewed 80 staff from the
Caltrans four District offices, Caltrans legal staff, and the USACE.
The audit team interviewed a cross-section of staff including top
senior managers, senior environmental planners, generalists, associate
planners, and technical experts. The audit team also reviewed project
files and records for over 45 projects managed under the Pilot Program.
The FHWA acknowledges that Caltrans identified specific issues
during its fourth self-assessment performed under the Pilot Program
(required by MOU section 8.2.6), and has established processes to
address most issues. Some issues described in the Caltrans self
assessment may overlap with FHWA findings identified in this audit
report.
In accordance with MOU section 11.4.1, FHWA provided Caltrans with
a 30-day comment period to review this draft audit report. The FHWA
reviewed comments received from Caltrans and revised sections of the
draft report, where appropriate, prior to publishing it in the Federal
Register for public comment.
Status of Findings Since Last Audit
As part of the fourth audit, FHWA evaluated the corrective actions
implemented by Caltrans in response to the audit findings in the third
audit report.
Most of the compliant findings in the third audit report involved
specific processes and procedures of the North and Central Region
offices. As these offices were not visited during this fourth audit, we
cannot report on the continuance of their compliance.
The FHWA reviewed the current status of ``Deficient'' and ``Needs
Improvement'' audit findings identified during the third FHWA audit in
January 2009.
``Deficient'' audit findings status:
1. Quarterly Reports--The quarterly reports Caltrans provides to
FHWA under section 8.2.7 of the MOU continue to include an inaccurate
listing of all approvals and decisions under the Pilot Program. This
continued area of deficiency was also reported by Caltrans in their
fourth self assessment.
2. Performance Measure--``Monitor relationships with Federal and
State resource agencies''--Caltrans reported in its fourth self-
assessment that a survey was conducted in early 2009 with those Federal
and State resource agencies that it works with on Pilot Program
projects.
3. Delegation of Signature Authority--This issue has been rectified
through issuance of clarifying direction to staff.
4. Assignment of Section 6002 Responsibility under the Pilot
Program--Caltrans has revised its Standard Environmental Reference
(SER) to correct and clarify the template letters for inviting
cooperating and participating agencies to participate in an EIS
project, as per section 6002 of SAFETEA-LU.
``Needs Improvement'' audit findings:
1. Quality Assurance/Quality Control (QA/QC) Certification
Process--Ongoing improvement was observed in the completion of the QC
certification forms. Nevertheless incorrect and incomplete QC
certification forms were still identified.
2. Self Assessment and Process Reviews--As per the suggestion of
this finding, the Caltrans fourth self assessment included review of
ongoing projects as well as completed projects.
3. Air Quality Conformity Determinations--The project files
reviewed during the fourth audit contained the necessary FHWA air
quality conformity determination documentation, where applicable.
4. Project Files/Uniform File System (UFS)--Some project files
reviewed during this audit met the requirements of Section 8.2.4 of the
MOU and SER Chapter 38 while other files reviewed did not meet these
requirements.
5. Commitment of Resources--Inconsistencies continued to be
observed with regard to charging time spent on pilot program activities
to the official Pilot Program code (6DELE).
6. Training on Air Quality Conformity--Caltrans reported in its
fourth self assessment that Air Quality training has been offered and
is to be provided in the upcoming training plan.
7. Assignments under the Pilot Program--Caltrans staff interviewed
indicated a better understanding of the SAFETEA-LU Section 6002 (23
U.S.C. 139) environmental review process requirements than indicated in
the third audit.
8. Performance Measure--``Monitor relationships with the general
public''--The fourth Caltrans self assessment reported a new process
for monitoring this performance measure had been implemented.
Monitoring of how the relationships are evolving is now being
conducted.
9. Documentation of Class of Action Determination--For projects
initiated under the Pilot Program, project files for class of action
determination reviewed during the fourth audit, contained this
documentation.
10. Local Assistance Training Plan--This finding was not revisited
as to its status during the fourth audit.
Effective Practices
The FHWA audit team observed the following effective practices
during the fourth audit:
1. One Caltrans District training coordinator implemented a system
to
[[Page 9642]]
capture and track which employees in that district completed online
training courses by creating and assigning a unique billing code for
time spent taking such courses. This training coordinator then manually
input this information into an employee's training plans.
2. In some Districts, electronic files are set up and organized to
mirror the UFS headings.
3. In one Caltrans District, new environmental staff are required
to attend an internal 23-day ``boot camp'' that introduces them to the
processes, procedures, and related information needed for their
position.
4. The use of a memorandum to the file with a complete explanation
of the circumstances and details regarding the ``down-scoping'' of a
project from an EIS to an environmental assessment (EA), or from an EA
to a CE.
5. Explanatory notes in a project file under one UFS tab stating
where the information for that tab is found filed under another tab
within the project file.
Findings Definitions
The FHWA audit team carefully examined Pilot Program areas to
assess compliance in accordance with established criteria in the MOU
and Application. The time period covered by this fourth audit report is
from the start of the Caltrans Pilot Program (July 1, 2007) through
completion of the third onsite audit (July 31, 2009) with the focus of
the audit on the most recent 6 month period. 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 and/or MOU.
Needs Improvement--Audit determined that a process,
procedure or other component of the Pilot Program as specified in the
Application 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 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
and/or MOU. Corrective action is required prior to the next audit. or
Audit determined that for a past Needs Improvement finding, the
rate of corrective action has not proceeded in a timely manner; is not
on the path to timely resolution of the finding.
Summary of Findings--July 2009
Compliant
C1) Legal Sufficiency Timeline--Caltrans' Legal Division has
developed a consistent process to conduct required legal sufficiency
reviews by attorneys (per 23 CFR 771.125(b) and 774.7(d)). Based on
interviews with staff and information provided during the audit, legal
reviews of NEPA and Section 4(f) of the U.S. DOT Act of 1966 (Section
4(f)) documents appear to be conducted within the times allotted by
Caltrans internal performance goals.
Needs Improvement
N1) Inadequate Guidance in the SER--Section 8.2.5 of the MOU
requires ``At a minimum, Caltrans' quality control and quality
assurance activities will include the review and monitoring of its
processes relating to project decisions, environmental analysis,
project file documentation, checking for errors and omissions, legal
sufficiency reviews, and taking appropriate corrective action as
needed.'' Several instances were identified where the guidance provided
in the SER was unclear, misleading, or incomplete. This resulted in
documents incorrectly completed and/or processes not implemented
correctly. Examples of such instances were:
a.) SER Chapter 38 requires that the SEP sign the Environmental
Document Review Checklist once it is completed. Review of project files
revealed Environmental Document Review Checklists that were either not
signed by a Senior Environmental Planner (SEP) or not signed at all.
Additionally, different versions of the checklist were found in various
project files, none of which designated which signature line was to be
completed by the SEP. These various instances of noncompliance with the
SER requirement were observed within individual Districts and also from
District to District.
b.) SER Chapter 38 guidance does not distinguish between the
``pilot program'' citation required to appear in individual Section
4(f) Evaluations prepared for Section 6005 CE projects and those
prepared for Section 6004 CE projects. The statement in the SER
regarding the project being carried out by Caltrans under its
assumption of responsibility pursuant to 23 U.S.C. 327 is only
applicable to Section 4(f) evaluations for Section 6005 CEs under the
Pilot Program. The CEs completed by Caltrans under the Section 6004 CE
assumption should refer to 23 U.S.C. 326. Through interviews and
project file reviews, confusion about this was identified and, at least
in some cases, the apparent misunderstanding that the same language is
to be used for both Section 6004 and Section 6005 CEs with individual
Section 4(f) evaluations.
c.) SER Chapter 33 discusses the process and documentation for
conducting NEPA re-evaluations (to comply with 23 CFR 771.129). The
chapter, last updated November 10, 2008, does not provide clear
direction on how to process a re-evaluation under the Pilot Program.
The chapter includes a reference to a joint FHWA/Caltrans guidance on
NEPA consultation and re-evaluation, dated June 21, 2007, that states,
``When the NEPA Pilot Program (NEPA assumption) begins, the joint
guidance and the NEPA/CEQA Revalidation form will be revised as
necessary.'' The FHWA/Caltrans joint guidance has not been revised to
take the Pilot Program into consideration. There is a link to a review
form that matches the form contained in the joint FHWA/Caltrans
guidance and has FHWA removed as having approval authority; however,
there is no guidance on the appropriate use of the form.
d.) SER Chapter 25 references FHWA Order 6640.2 FHWA Actions to
address Environmental Justice in minority and Low-Income Populations;
however, the flowchart and guidance provided in that chapter do not
fully reflect the definition of Disproportionately High and Adverse
Effect on Minority and Low-Income Populations provided in that Order,
nor does it clearly state the need to identify population served and/or
affected by race, or national origin, and income level when determining
such effects. The SER chapter provides discussion points and some
sources for reference material, but does not provide specific guidance
to NEPA practitioners for how to integrate a project level review into
a NEPA process, to document proposed steps to guard against
disproportionately high and adverse effects, or to document meaningful
public involvement opportunities and consider the results.
N2) Procedural and Substantive Requirements--MOU Section 5.1.4
states that Caltrans will work with all other appropriate Federal
agencies concerning the laws, guidance, and policies that such other
Federal agencies are responsible for administering. Areas in need of
improvement in working with Federal agencies included:
[[Page 9643]]
a.) Through interviews with USACE and USFWS staff located in
California, instances were identified where there was confusion as to
the implementation of the Endangered Species Act (ESA) Section 7
process and how it is related to the USACE permitting process. Verbal
comments were made by resource agency staff that when working on local
agency projects, the local project sponsors lacked clarity on the
information regarding the ESA Section 7 compliance needed for the USACE
permitting process. It was also learned that on more than one occasion,
local agencies inappropriately acted as lead agency for ESA Section 7
consultation and Section 404 of the Clean Water Act coordination.
b.) The SER Chapter 38, Consultation and Coordination with Federal
Agencies, requires Caltrans to include the following specific language
in consultation documents being transmitted directly to Federal
resource agencies:
Caltrans is [transmitting/initiating * * * (describe product or
action)] as the NEPA lead agency under the provisions of the
Memorandum of Understanding (MOU) between the Federal Highway
Administration and the California Department of Transportation
Concerning the State of California's Participation in the Surface
Transportation Project Delivery Pilot Program, which became
effective on July 1, 2007. The MOU was signed pursuant to Section
6005 of the 2005 Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users (SAFETEA-LU) which
allows the Secretary of Transportation to assign, and the State of
California to assume, responsibility for FHWA's responsibilities
under other Federal environmental laws. As this project is covered
by the Pilot Program MOU, FHWA has assigned and Caltrans has assumed
FHWA responsibility for environmental review, consultation, and
coordination on this project. Please direct all future
correspondence on this project to Caltrans.
A letter in a project file from Caltrans to USFWS requesting
initiation of formal ESA Section 7 consultation did not include the
required language regarding the responsibilities assumed by Caltrans.
N3) Section 4(f) Documentation--MOU Section 5.1.1 affirms that
Caltrans is subject to the same procedural and substantive requirements
that apply to the DOT in carrying out the responsibilities assumed
under the Pilot Program. Through project file reviews and interviews
with Caltrans staff, inconsistencies were identified with the
documentation required in carrying out the Section 4(f) provisions.
These included:
a.) For one project, no documentation was provided in the EA or in
the project file to support the assertion that ``[t]emporary uses do
not normally constitute `use' under Section 4(f) policy.'' The FHWA
regulation regarding ``temporary occupancies of land,'' 23 CFR
774.13(d), states in pertinent part that there must be documented
agreement with the official with jurisdiction over the Section 4(f)
resource that the requisite conditions have been met. 23 CFR
774.13(d)(5).
b.) Two project files that together contained inadequate
documentation of three potential Section 4(f) resources were
identified. Documentation did not fully support statements that these
resources were not, in fact, Section 4(f) resources. In one case, the
official with jurisdiction even disputed the statement in the
environmental document that the subject property was not a Section 4(f)
resource and provided information to support a Section 4(f) resource
identification. In another document, there was an implied de minimis
effect by the use of the term; however, no supporting documentation was
provided, nor was there any evidence of public involvement or
coordination with the officials with jurisdiction over the Section 4(f)
resource, as required by 49 U.S.C. 303(d) and 23 CFR 774.7(b).
c.) In four project files reviewed during the audit, documentation
did not reflect that the current Section 4(f) regulations are being
adhered to in all NEPA processes. In these four projects, references
were made to the prior FHWA regulations at 23 CFR 771.135 rather than
to the updated regulations at 23 CFR Part 774.
N4) Circulation of a Draft Section 4(f) Evaluation--Project file
reviews and interviews with Caltrans staff identified confusion as to
the requirements for the circulation of the Section 4(f) Evaluation to
the Department of the Interior (DOI) for review. In one instance,
Caltrans staff contacted the FHWA Division Office to determine
circulation requirements and documentation indicates that the Section
4(f) Evaluation was sent to FHWA for forwarding to DOI.
N5) Section 4(f) Implementation--MOU Section 5.1.1 requires
Caltrans to be subject to the same procedural and substantive
requirements that apply to the DOT when carrying out the
responsibilities it has assumed. Through project file reviews and
interviews of Caltrans staff, several inconsistencies with the
implementation and general understanding required in carrying out the
Section 4(f) provisions were identified. These include:
a.) Text in an EA that cited the Section 4(f) ``policy'' should
have referred to the Section 4(f) ``regulations.'' The correct citation
for this Section 4(f) Evaluation should have been the FHWA regulations,
23 CFR Part 774.
b.) Review of a final Environmental Assessment/Finding of No
Significant Impact (EA/FONSI) and project files revealed a lack of
understanding regarding the applicability of FHWA's Nationwide
Programmatic Section 4(f) evaluation for the rehabilitation or
replacement of historic bridges. Under the Programmatic, all five
criteria of applicability set forth in this programmatic must be met
and the explanation for meeting the criteria must be included in the
document and the project file (https://www.environment.fhwa.dot.gov/projdev/4fbridge.asp). In addition, the draft EA for this project
reached a Section 4(f) conclusion prior to executing the Section 106
MOU with the State Historic Preservation Office.
N6) Legal Division Staff--Caltrans' Legal Division consists of four
largely autonomous offices\2\ serving different regions of the State.
The MOU section 4.2.2 requires Caltrans ``to obtain adequate* * * staff
capability'' including ``without limitation* * * [d]emonstrating, in a
consistent manner, the capacity to perform Caltrans' assumed
responsibilities under this MOU and applicable Federal laws.'' As noted
in a previous audit report, Caltrans maintains a staff of attorneys in
each of the four offices trained to support the Pilot Program, and
tracks the training each of these attorneys receives related to
environmental law. The audit team notes that many of the attorneys
assigned to the Pilot Program have a great deal of general legal
experience; however, over the life of the Pilot it has become apparent
that the four legal offices vary widely when it comes to attorneys with
significant experience in Federal environmental law. During this audit,
it became clear that this inconsistency increased following the
retirement of a highly experienced attorney near the end of 2008. This
retirement has resulted in two of Caltrans' legal offices--each of
which serves some of Caltrans' largest and busiest Districts--having on
staff no attorneys with substantial experience in Federal environmental
law. It is the audit team's understanding that legal sufficiency
reviews are conducted independently within these autonomous offices,
increasing the potential that legal sufficiency reviews may be applied
in an inconsistent manner across the State.
---------------------------------------------------------------------------
\2\ The four offices are located in Sacramento, San Francisco,
Los Angeles, and San Diego.
---------------------------------------------------------------------------
[[Page 9644]]
N7) Training--Section 4.2.2 of the MOU requires Caltrans to
maintain adequate organizational and staff capacity to effectively
carry out the responsibilities it has assumed under Section 3 of the
MOU. The following inconsistencies were noted during interviews:
a.) Interviews and personnel training record reviews identified two
tools used by Caltrans to determine the capacity of Caltrans staff to
carry out Pilot Program responsibilities including a Learning
Management System (LMS) and Individual Development Plans (IDPs). The
audit team observed that these tools, and possibly others, are used in
varying ways and with varying success across Districts to (1) identify
training needs or gaps in areas of expertise and (2) plan and track the
training each employee receives. Given this variation and use of these
tools and approaches, it is unclear how District leadership ensures
that all Caltrans employees have the capacity to carry out assigned
responsibilities assumed under the Pilot Program and how this
information can be collected.
b.) Interviews reflected a lack of knowledge in two areas. As is
detailed in other portions of this audit report, several instances of
inadequate staff capacity for determining compliance process
requirements related to the Section 4(f) and ESA Section 7 processes
were observed during this audit. This is an example of a needed
competency that does not appear to be being met and/or being tracked.
As was also noted earlier in this report, there is varying
understanding of the re-evaluation process and requires additional
training for staff to be competent in the understanding of this
process.
c.) As the demand for and use of online training courses increases,
there is currently no consistent method for Caltrans to track which
employees have completed online training courses and to incorporate
this information into the LMS and into the employee IDPs. In order to
ensure that Caltrans employees implementing NEPA duties have the
knowledge and skills to assume the responsibilities under Section 3 of
the MOU, Caltrans should begin to track this information and also
determine which online training courses should be prerequisites for
performing certain NEPA assumption activities.
N8) Maintenance of Project and General Administrative Files--
Section 8.2.4 of the MOU requires Caltrans to maintain project and
general administrative files pertaining to its discharge of the
responsibilities assumed under the Pilot Program. Caltrans has
instituted specific procedures for maintaining project files and has
provided training on these procedures. Inconsistencies in the
application of these procedures, reported in previous audit findings,
were also identified in this audit. Inconsistencies in 12 of the 47
project files reviewed during the audit, including:
a.) Required project documentation was missing from several project
files. Examples of missing documentation included: a Biological
Opinion; ESA Section 7 concurrence documentation; internal and external
communications related to the project; letters from the District Local
Agency Engineer to the local agency transmitting the Preliminary
Environmental Study form with the list of the required technical
studies for the project; and noise abatement decision report.
b.) Some required file documentation missing from project files was
eventually located elsewhere in the District Office. Examples of items
missing from the project file, but brought to auditors upon request,
included cooperating agencies' letters, FHWA project level air quality
conformity determinations, Caltrans' noise abatement decision reports,
a project's Section 106 MOA, and evidence of the circulation of Section
4(f) documents to the DOI. Required documentation could not be located
during the audit.
c.) The required documentation according to 23 CFR
771.111(h)(2)(vi), which states that the State must provide
``transcript of each public hearing and a certification that a required
hearing or hearing opportunity was offered'' could not be located
during the audit. In two instances, the public hearing transcript was
not found nor was any certification (or other documentation) that a
hearing had been held.
d.) In several instances, project files were missing required UFS
tabs (though they contained pertinent documentation) and some sections
contained no information or explanation as to why the tabs were missing
or tab sections were empty.
N9) Varying Oversight/Analysis of Commitment of Resources --
Section 4.2.2 of the MOU requires that ``Caltrans will maintain
adequate organizational and staff capability, including competent and
qualified consultants where necessary or desirable, to effectively
carry out the responsibilities it has assumed under part 3 of this MOU.
This includes, without limitation:
[cir] Using appropriate environmental technical and managerial
expertise;
[cir] Devoting adequate staff resources; and
[cir] Demonstrating, in a consistent manner, the capacity to
perform Caltrans' assumed responsibilities under this MOU and
applicable Federal laws.''
Previous audits have tried to determine how Caltrans monitors its
resources to implement the Pilot Program, but based on audit
interviews, were unable to identify a uniform process. Through
interviews and material reviewed during this audit, it was determined
that the existing system used by Caltrans to track resources showed
inconsistent use of billing codes and in one case identified an error
not previously found by Caltrans. During the interviews with Caltrans
environmental personnel, inconsistencies continued to be identified in
the reporting and use of these Pilot Program codes. These
inconsistencies include:
(a) Lack of familiarity with the activities eligible to be billed
to the Pilot Program,
(b) Lack of supervisory direction as to what activities should be
billed to the Pilot Program;
(c) Failure to report all times eligible for billing under the
appropriate codes for both Capital and Local Assistance programs (codes
6DELE and 6LADELE, respectively);
(d) Varying degrees of oversight, or no oversight of the billing
codes for the Pilot Program performed in the Districts.
Deficient
D1) Quality Control Quality (QA/QC) Assurance--Under the Pilot
Program, and as reflected in the language cited on each environmental
document assigned to Caltrans per MOU Section 3.2.5, NEPA documentation
should reflect that FHWA has no role in the environmental review and
decisionmaking process for assigned projects. Through project file and
document reviews, three instances were observed where in a document or
in the project file, there were references to FHWA being involved in
the decisionmaking process.
D2) QA/QC Certification Process--Section 8.2.5 of the MOU and SER
Chapter 38 require Caltrans staff to review each environmental document
in accordance with the policy memorandum titled ``Environmental
Document Quality Control Program under the NEPA Pilot Program'' (July
2, 2007). Incomplete and incorrectly completed QC certification forms
continue to be identified. Five of the seven identified instances
occurred in 2008. Examples of these are:
a) Four instances in which review signatures on QA/QC forms were
not
[[Page 9645]]
obtained the proper sequence in accordance with the Caltrans
established QA/QC processes;
b) Three project files where QA/QC forms were either incomplete or
missing.
D3) Quarterly Reporting--MOU Section 8.2.7 requires Caltrans to
submit a report to FHWA each quarter for the first 2 years of Pilot
program listing all approvals and decisions Caltrans makes with respect
to responsibilities assumed under the MOU. Quarterly reports submitted
by Caltrans for the first eight quarters of Pilot program participation
were reviewed for this audit. Each of the first seven quarterly reports
has been revised; some reports have been revised multiple times. In
summary, for the first seven quarterly reports, a total of 63 new
projects were added in report revisions and 29 projects initially
reported were subsequently deleted. The reporting issues spanned across
the majority of districts reporting projects, and seven districts
submitted revisions to four or more quarterly reports. Inaccurate
project reporting has been a consistent issue affecting the quarterly
report process and has been identified in previous FHWA audit reports.
Among the errors discovered were reporting errors related to
incorrectly characterizing projects (e.g., CEs under Section 6004 and
Section 6005), and omissions associated with untimely reporting of
project approvals and decisions by district staff (i.e., a subsequent
quarterly report included a project that was approved in the previous
quarter). The approach used by each district to collect project
information for the quarterly reports is highly variable and is one key
contributor to continued reporting inaccuracies.
The current Caltrans approach to developing the quarterly reports
continues to be deficient. The accuracy of the reports on project
approvals and decisions affects FHWA oversight of the Pilot Program.
For example, if Caltrans does not report to FHWA a project being
administered under the Pilot Program, the project may not be included
in the audit process. Additionally, now that the FHWA onsite audit
process will move to an annual basis (semi-annual audits were required
during the first 2 years of the Pilot Program), the project approval
and decision reporting takes on increased significance as less in-field
auditing will occur.
Response to Comments and Finalization of Report
The FHWA received no comments during the 30-day comment period for
the draft audit report. Therefore, the FHWA feels that there is no need
to revise the draft audit report findings and finalizes the audit
report with this notice.
[FR Doc. 2010-4432 Filed 3-2-10; 8:45 am]
BILLING CODE 4910-22-P