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Categorical Exclusions Questions & Answers

Posted 9/25/2012

Section 1314 Application of Categorical Exclusions for Multimodal Projects

Question 1: What does Section 1314 of MAP-21 do with respect to the application of categorical exclusions (CE) for multimodal projects?

Answer 1: This provision creates a process that, under certain conditions, allows a USDOT modal administration to be the "lead authority" and allows it to use, under specified circumstances, the CEs of another USDOT modal administration that is a "cooperating authority" for the multimodal project. The statute does not require rulemaking. Detailed guidance is under development by USDOT as of the October 1, 2012 effective date of MAP-21.

Section 1315 Categorical Exclusions in Emergencies
Section 1316 Categorical Exclusions for Projects within the Right-of-Way
Section 1317 Categorical Exclusion for Projects of Limited Federal Assistance

Question 2: Does MAP-21 require rulemaking to designate new the new CEs identified in Sections 1315-1317?

Answer 2: Section 1315 of MAP-21 mandates rulemaking for a new CE for certain repair and reconstruction actions for roads, highways, or bridges that have been damaged by an event declared by the President as an emergency or disaster under the Stafford Act or declared by the Governor as an emergency if the Secretary concurs with the Governor's declaration.

Section 1316 mandates rulemaking for a new CE for any project, as defined by 23 U.S.C. 101(a), within an existing operational right-of-way. "Project" is defined as "…any undertaking eligible for assistance under this title."

Section 1317 mandates rulemaking for a new CE for any Federal assistance project (A) that receives less than $5,000,000 of Federal funds or (B) with a total estimated cost of not more than $30,000,000 and Federal funds comprising less than 15 percent of the total estimated of the project cost.

Question 3: When would these new CEs become effective?

Answer 3: Rulemaking must occur before CE designations pursuant to sections 1315, 1316 and 1317 become effective. This includes the publication of a proposed rule and the publication of a final rule after consideration of public comments on the proposed rule. The final rule will establish the date when the new CEs become effective.

Section 1318 Programmatic Agreements and Additional Categorical Exclusions

Question 4: What does MAP-21 Section 1318 require?

Answer 4: Under Section 1318 of MAP-21 the USDOT Secretary is required to survey the Department's use of CEs since 2005 and publish a review of the survey, solicit requests from stakeholders for new CEs, and publish a notice of proposed rulemaking to propose the designation of new actions as CEs. The Secretary must also conduct a rulemaking to propose to reclassify three categories of actions currently in the (d) list of 23 C.F.R. 771.117 to the (c) list. Finally, the Secretary is directed to seek opportunities to enter into programmatic agreements with States that establish efficient administrative procedures for carrying out environmental and other required project reviews.

Question 5: What steps has the Secretary taken to fulfill the Section 1318(a) requirements?

Answer 5: The Secretary invited State departments of transportation, transit authorities, metropolitan planning organizations, and other governmental agencies to participate in an online survey to assist in this effort. Following a published review of the survey, the Secretary will publish a notice of proposed rulemaking to propose new categorical exclusions as required under this provision.

Question 6: What three existing CEs are proposed to be reclassified by Section 1318 of MAP-21?

Answer 6: Section 1318(c) requires the Secretary to propose rulemaking to reclassify the following types of actions from 23 C.F.R. 771.117(d) list to the (c) list: (1) modernization of a highway, (2) highway safety or traffic operations improvement projects, and (3) bridge projects. If adopted in a final rule, then these categories of actions would no longer require the level of documentation required under 23 C.F.R. 771.117(d).

Question 7: How does MAP-21 Section 1318(d) address CE programmatic agreements?

Answer 7: Section 1318(d)(2)of MAP-21 authorizes the use of CE programmatic agreements to administratively assign to a State the authority to determine, on behalf of the Federal Highway Administration, whether a project is categorically excluded from the preparation of an Environmental Assessment or Environmental Impact Statement. Section 1318(d)(3) authorizes the Secretary to include in a CE programmatic agreement any CEs the Secretary has established for that specific State that are not listed in 23 C.F.R. 771.117.

Page last modified on September 12, 2013.
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