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Description of Figure on decision making regarding the provisions of the 23 USC Section 236 MOU


This guidance was superseded in September 2013. For current guidance, see www.fhwa.dot.gov/hep/map-21_research/resources/categorical_exclusions/.

This figure is a flow chart that graphically illustrates FHWA and State decisions and actions pertaining to activities or projects processed according the provisions of the MOU and according to the process in place prior to the MOU. The flow chart begins at the top of the page with two boxes that denote activities that occur at the same time. One box on the far left is for the FHWA MOU monitoring activity and the other box on the far right is for the State's initial consideration of the activity assigned by Stipulation I(B), subject to Stipulation III(D). This means that FHWA's monitoring of the MOU occurs at the beginning and throughout the State's decision making process.

On the right side of the figure, two arrows point downward from the base of the box labeled the State's initial consideration of activity to two boxes that represent alternate decisions that the State could make. One arrow points to a box labeled activity is included in the MOU. The second arrow points to a box labeled activity is excluded from the MOU, State prepares documentation in Stipulation IV(C). On the left side of the figure at the same level, a downward arrow extends below the FHWA monitoring box. This means that FHWA's monitoring of the MOU includes these two State decisions.

On the right side of the figure, one arrow extends downward from the base of the box labeled activity is one included in the MOU to a box labeled state processes according to Stipulation IV(B). This means that once the State decides an activity is included in the MOU, the State processes the project according to the MOU.

Also on the right side of the figure, an arrow extends from the base of the box labeled activity is excluded from the MOU, State prepares documentation in Stipulation IV(C) downward to a box labeled State processes according to pre-MOU procedures or PA. An arrow extends from the base of this box downward to a box labeled CE approved by FHWA. This means that if the State decides an activity is excluded from the MOU, the project is processed according to procedures that predate the MOU and the CE is approved by FHWA.

On the left side of the figure the arrow extending from the base of box labeled FHWA MOU monitoring points downward to a box labeled MOU performance problem recognized. This means that any time after the State is processing a project according to the MOU, FHWA may recognize a MOU performance problem.

An arrow extends downward from the base of the box labeled MOU performance problem recognized to a box labeled FHWA evaluation by Stipulation III(B). This box has an arrow pointing to it from the box to its right which is labeled State processes according to Stipulation IV(B) and has another arrow that extends to the right and upwards from this box to a box labeled not resolved by the state. The box labeled not resolved by the state has an arrow extending from its right side to the far right that points to the box labeled State processing according to pre-MOU procedures or PA. The base of the box labeled State processing according to pre-MOU procedures or PA, as stated above, has a downward arrow pointing to a box labeled CE approved by FHWA. Moving back to the left side of the figure, an third arrow extends below the box labeled FHWA evaluation by Stipulation III(B) to a box below labeled problem resolved by the State. This box has an arrow pointing downward from its base to a box labeled CE approved by the State. This means that once FHWA recognizes a MOU performance problem, it will evaluate the problem and contact the State. The outcome of the contact between FHWA and the State regarding the MOU performance problem is either that the problem is not resolved by the State, whereby FHWA will ask the State to process the project according to pre-MOU procedures and the CE will be approved by FHWA. Alternatively, the problem is resolved by the State the CE will be approved by the State.

Two arrows extend below the box labeled State processes according to Stipulation IV(B). One extends from the base of the box downward to the box labeled CE approved by the State. The other arrow extends from the base of the box down and to the right to a box labeled FHWA tribal consultation, Stipulation II(B). The tribal consultation box has two downward pointing arrows from its base. The arrow on the left points to a box labeled resolved by the State. At the base of this box, an arrow points downward to the box labeled CE approved by the State. The arrow to the right below the box labeled FHWA tribal consultation, points to a box labeled not resolved by State, Stipulation III(C). Below that box is an arrow that points down, to the right and back upwards to the box labeled State processes according to pre-MOU procedures or PA. As already stated, the box labeled with State processes according to pre-MOU procedures or PA has a downward pointing arrow from its base to a box labeled CE approved by FHWA. This set of arrow and boxes means that as part of the State's processing of a project, if no Tribal consultation is necessary, the CE is approved by the State. If Tribal consultation takes place, it will either result in no issues or issues that have been resolved by the State. In which case the CE is approved by the State. However, if an issue arises from Tribal consultation and the issue is not resolved by the State, FHWA will ask the state to process the project according to pre-MOU procedures and the CE will be approved by FHWA.

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Updated: 10/17/2013
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