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FHWA Monitoring Reviews of 23 USC §326 Categorical Exclusion Assignments


The primary objective of Section 6004 Memorandum of Understanding (MOU) monitoring is to determine whether the State is adequately performing the categorical exclusion (CE) decision-making role that, in the absence of the MOU, is carried out by the FHWA. A second purpose is to obtain information on the environmental results of the State's assumption of CE and other environmental responsibilities, so that the FHWA can assess the overall effectiveness of the CE assignment program. The FHWA can undertake monitoring efforts whenever the Division deems appropriate. Minimum frequencies are established by the applicable Section 6004 MOU (Stipulation IV(F)(5)-(6).

Section 6004 (23 U.S.C. 326), the MOU, and this monitoring guidance describe general MOU monitoring practices. Because the responsibilities assigned will vary from State-to-State, the monitoring programs will vary as well. The FHWA Divisions have discretion to tailor a monitoring work plan to meet the specific needs of an individual State that has taken on the CE decision-making role. For example, some assigned CE activities (such as one that complies with 23 CFR 771.117(d), but is not a listed example in that section) may merit more intensive levels of inquiry than others. In some cases, a State's performance of an environmental responsibility assigned under the MOU, such as consultation under the Endangered Species Act, may raise questions that cannot be answered without obtaining information beyond that suggested in this guidance.

The FHWA Divisions should work closely with their State partners to ensure that monitoring actions are not excessively burdensome on either agency, but also that the reviews and resulting reports are credible and provide the public and others with an independent evaluation of the State's performance. A review includes evaluating whether the State provided the resources necessary to carry out its responsibilities under the MOU and 23 U.S.C. 326, and whether the State has complied with the other requirements of the MOU, including compliance with NEPA provisions and other environmental responsibilities assigned under the MOU.

The FHWA reviewers are encouraged to use FHWA CE process review techniques as the basis for creating a 6004 monitoring work plan. Changes to the typical CE process review will be needed to ensure that the work plan adequately addresses Section 6004 tasks and requirements. For example, Section 6004 expressly requires that the FHWA monitor compliance with MOU terms and conditions. The law also requires the FHWA to determine whether the State has provided adequate staff and financial resources. The monitoring information is important because the FHWA must take monitoring results into account when considering renewal of the assignment, and because the FHWA will be expected to report to Congress on the success of Section 6004.

Section 6004 Performance Measures

This guidance outlines below the key performance measures that the FHWA will consider in evaluating the performance and success of Section 6004 MOUs individually and the success of the 6004 assignments across the Federal-aid Highway Program. The performance measures focus on quality and time-savings. Some of the measures (quality measures of State MOU performance numbers1-6) will be important to a Division determination about the adequacy of State performance of its MOU responsibilities. Others (timeliness measure and the FHWA assessment of overall outcome) will produce data that will enable the FHWA to report to Congress and others on the overall success of the 6004 assignments. Also appearing below are some Section 6004-specific guidelines on the standard of FHWA review of State MOU performance and on judging timeliness and overall environmental outcome.

Quality Measures for State MOU Performance

  1. CE decisions are appropriately and timely documented.
  2. CE decisions are factually and legally supportable at the time the decision is made.
  3. CE decision-making procedures comply with NEPA, 23 CFR 771.117, and the MOU.
  4. The State has met staffing and quality control requirements of MOU.
  5. The State has complied with other Federal and State legal requirements.
  6. The State has complied with recordkeeping requirements.

Standard of Review for Quality of State MOU Performance

Timeliness Measure

The CE assignment reduces the time required for processing assigned CEs, measured by type ("c" list, "d" list examples, other "d" list)

Judging Timeliness Results

Measuring timeliness entails establishment of a pre-MOU baseline for the processing time experienced for PCE and non-PCE CEs in the "d" categories through a process review or other method.

FHWA Assessment of Overall Outcome

Overall, environmental outcomes on CE projects are as good as, or better than, the environmental outcomes on CE projects prior to the assignment to the State (measuring this entails establishment of a pre-MOU baseline for environmental outcomes through a process review or other method).

Judging the Overall Environmental Outcome

FHWA Data-gathering, Coordination and Reporting

This section of the guidance offers an operational framework that Divisions may wish to follow when gathering monitoring data relating to Section 6004 performance measures. Also outlined are FHWA coordination and reporting procedures for the monitoring reviews. By following, to the extent applicable, the steps discussed in these two subparts of the guidance, FHWA Divisions will promote agency-wide consistency in monitoring and assessment activities for Section 6004 assignments.

FHWA Data-gathering

FHWA Division Coordination and Reporting

The Program Office will circulate draft reports, final reports, and action plans to other Headquarters offices for review and comment as appropriate. Reports to Congress on the results of Section 6004 assignments will be prepared and coordinated in accordance with applicable FHWA procedures.

Updated: 04/17/2014
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