Programmatic Categorical Exclusion Agreements
Since 1989, FHWA Division Offices and State Departments of Transportation (DOTs) have entered into programmatic agreements that establish procedures for
expeditious and efficient approval of Categorical Exclusions (CE), most of which are listed under 23 CFR Part 771.117(d) (commonly known as d-list CEs).
Section 1318(d) of MAP-21 enshrined this practice into law and FHWA, through rulemaking, codified it in 23 CFR 771.117(g). Now the FAST Act, Section 1315(b) has
clarified that PCE agreements allow State DOTs to approve as CEs, actions not listed in regulation so long as they meet the criteria of a CE. The FHWA Division Office, by
agreement with the State DOT, does not require individual project-by-project and approval for the projects which meet the conditions stipulated in the
agreements and the State DOT may make a CE approval on FHWA’s behalf. These agreements also establish expectations and responsibilities for the
FHWA and State DOT parties involved and can usefully identify processing and documentation expectations for all CE actions, quality control and quality
assurance, and FHWA oversight.
On February 4, 2015, the FHWA issued a memorandum recognizing the authority in MAP-21 Section 1318 and 23 CFR 771.117(g). Existing agreements remain valid until revised to conform with the new agreement requirements in the regulation. Revisions to all agreements should be completed before November 6, 2019, five years after the effective date of the regulation. The previous memorandum dated October 28, 2015, indicated we are no longer requesting that each revised agreement be forwarded for HEPE and HCC review, so long as the revised agreement closely follows the guidance and template agreement. The October 2015 memo continues to be effective; however, coordination with these offices will be necessary if the SDOT and Division Office plan to include CE designations not listed in the regulation. On May 31, 2016, FHWA issued a memorandum identifying the change in PCE agreements prompted by the FAST Act and information on its implementation.
For questions or feedback on this subject, please contact Owen Lindauer at 202-366-2655 or Damaris Santiago at 202-366-2034. For general questions or web problems, please send feedback to the web administrator.