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Revision of Stewardship and Oversight Agreement Template Publication: Federal Register Agency: Federal Highway Administration Byline: Stephanie Pollack Date: 21 December 2022 Subjects: American Government  , Roads & Highways
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[Federal Register Volume 87, Number 244 (Wednesday, December 21, 2022)]
[Notices]
[Pages 78193-78201]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-27705]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
[FHWA Docket No. FHWA-2022-0013]
Revision of Stewardship and Oversight Agreement Template
AGENCY: Federal Highway Administration (FHWA), Department of
Transportation (DOT).
ACTION: Notice of revised Stewardship and Oversight Agreement template,
request for comments.
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SUMMARY: The FHWA has completed a revision to the Federal-State
Stewardship and Oversight (S&O) Agreement template. The revised S&O
Agreement template that is the subject of this notice is an updated
version of a template issued by FHWA in 2015. The revisions address
such issues as changes in applicable laws and the evolution of FHWA's
risk-based stewardship and oversight program. The FHWA is requesting
comments on the revised S&O Agreement template. The FHWA will publish a
Federal Register notice announcing the final S&O Agreement template,
including any changes FHWA makes in response to public comments.
DATES: The public comment period closes on February 21, 2023.
ADDRESSES: All comments should include the docket number that appears
in the heading of this document and may be submitted in any of the
following ways:
Electronically through the Federal eRulemaking Portal:
www.regulations.gov. This website allows the public to enter comments
on any Federal Register notice issued by any agency. Follow the online
instructions for submitting comments.
Fax: 1-202-493-2251.
Mail: U.S. Department of Transportation, Docket
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue SE, Washington, DC 20590-0001.
Hand Delivery: U.S. Department of Transportation, Docket
Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey
Avenue SE, Washington, DC 20590 between 9 a.m. and 5 p.m., ET, Monday
through Friday, except Federal holidays.
Instructions: You should identify the docket number at the
beginning of your comments. If you submit your comments by mail, submit
two copies. To receive confirmation that DOT received your comments,
include a self-addressed stamped postcard. Late comments will be
considered to the extent practicable. Note that all comments received
will be posted without change to www.regulations.gov, including any
personal information provided.
FOR FURTHER INFORMATION CONTACT: Mr. Lloyd Rue, Office of
Infrastructure, (202) 366-6125, office hours are from 8 a.m. to 4:30
p.m., MT, Monday through Friday, except Federal holidays, or Ms. Alla
Shaw, Office of the Chief Counsel, (202) 366-1042, office hours are
from 8 a.m. to 4:30 p.m., ET, Federal Highway Administration, 1200 New
Jersey Avenue SE, Washington, DC 20590. Offices are open Monday through
Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION:
Electronic Access
This document and the revised S&O Agreement template may be viewed
online under the docket number noted above through the Federal
eRulemaking portal at: www.regulations.gov. Electronic submission and
retrieval help and guidelines are available on the website. Please
follow the online instructions.
In addition to being available in the electronic docket, the
revised S&O Agreement template may also be viewed online at: https://www.fhwa.dot.gov/federalaid/stewardship/Draft_stewardship_and_oversight_template.docx.
An electronic copy of this document may also be downloaded from the
Office of the Federal Register's website at: http://www.archives.gov/federal-register and the U.S. Government Publishing Office's website
at: http://www.govinfo.gov/.
Physical access to the docket is available at the U.S. Department
of Transportation, Docket Operations, M-30, West Building Ground Floor,
Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20950, between
9 a.m. and 5 p.m. ET, Monday through Friday, except Federal holidays.
All comments received before the close of business on the comment
closing date indicated above will be considered and will be available
for examination in the docket at the above address. Comments received
after the comment closing date will be filed in the docket and will be
considered to the extent practicable. In addition to late comments,
FHWA will also continue to file relevant information in the docket as
it becomes available after the comment period closing date and
interested persons should continue to examine the docket for new
material.
Background
In enacting 23 United States Code (U.S.C.) 106(c), as amended,
Congress established authority for States to enter into agreements with
FHWA under which the States carry out certain project responsibilities
traditionally handled by FHWA. Congress also recognized the importance
of a risk-based approach to FHWA oversight of the Federal-aid highway
program (FAHP), establishing requirements in 23 U.S.C. 106(g). The S&O
Agreement is a key element of FHWA's risk-based S&O approach. The S&O
Agreements are formal instruments executed between each FHWA Division
Office and its corresponding State department of transportation (State
DOT). The S&O Agreement defines the roles and responsibilities of FHWA
and the State DOT with respect to Title 23, U.S.C. project approvals
and related responsibilities, and documents methods that will be used
for FAHP oversight activities.
In response to Office of Inspector General recommendations,\1\ FHWA
revised its national S&O procedures to require use of a uniform
template for developing an S&O Agreement and instituted a legal review
of each S&O Agreement. In 2015, FHWA issued the template currently in
use. Each of the 52 FHWA Division Offices and their respective State
DOTs executed a new S&O Agreement based on the 2015 S&O Agreement
template.
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\1\ ``Improvements to Stewardship and Oversight Agreements Are
Needed to Enhance Federal-aid Highway Program Management,'' OIG,
DOT, Report Number MH-2013-001 (October 1, 2012), available online
at https://www.oig.dot.gov/library-item/28742.
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Since the issuance of the 2015 S&O Agreement template and
implementation of the new S&O Agreements, statutes and regulations
applicable to the FAHP have changed.
[[Page 78194]]
In addition, FHWA identified improvements for the 2015 template. For
these reasons, FHWA initiated updates to the 2015 S&O Agreement
template.
Finally, section 11307 of the Bipartisan Infrastructure Law (Pub.
L. 117-58) directed the Secretary of Transportation to publish a
template created by the Secretary for Federal-State S&O agreements in
the Federal Register along with a notice requesting public comment on
ways to improve the template. Accordingly, FHWA is making available the
revised template and the 2015 template in the docket established for
this notice. The 2015 template is included for reference, and it may
also be viewed at https://go.usa.gov/xtQcM. The FHWA is requesting
comments on the revised template, which FHWA believes addresses many
concerns expressed by stakeholders since 2015.
Discussion of Changes
Revisions to the 2015 S&O Agreement template include the removal of
redundant language and outdated text; revisions to the project-level
approval actions, listed in attachment A to the template, including
revisions based on changes in Federal law that have occurred since
March 2015; and reorganization of the template.
The revised S&O Agreement template is more concise. The text of the
2015 S&O Agreement template is 12 pages, excluding signature pages and
the attachments. The text of the revised S&O Agreement template is 7
pages, excluding signature pages and the attachments.
The 2015 S&O Agreement template has 12 sections. The revised S&O
Agreement template is now nine sections. The revised section headings
are:
Section I. Background and Introduction
Section II. Intent and Purpose of Agreement
Section III. Permissible Areas of Assumption Under 23 U.S.C. 106(c)
Section IV. Assumption of Responsibilities for Federal-Aid Projects
on the NHS
Section V. Assumption of Responsibilities for Federal-Aid Projects
off the NHS
Section VI. FHWA Oversight Program Under 23 U.S.C. 106(g)
Section VII. State DOT Oversight Responsibilities
Section VIII. Agreement Execution and Modifications
Section IX. Agreement Term and Termination
The title of the agreement is unchanged.
The 2015 S&O Agreement template included three attachments: (1)
attachment A--Project Action Responsibility Matrix; (2) attachment B--
Program Responsibility Matrix; and (3) attachment C--Manuals,
Agreements, Control, Monitoring, And Reporting Documents. The revised
S&O Agreement template eliminates attachment B--Program Responsibility
Matrix of the 2015 agreement template. The purpose of attachment B in
the 2015 template was to identify FHWA and State DOT offices involved
in carrying out various program-level actions under the FAHP. That
detailed level of information is not necessary in this more focused and
concise version of the S&O Agreement template.
The revised S&O Agreement template includes three attachments: (1)
attachment A--Project Action Responsibility Matrix; (2) attachment B--
Manuals, Agreements, Control, Monitoring, And Reporting Documents; and
(3) attachment C--Stewardship and Oversight Indicators.
Request for Comments
Although comments may address any part or provision of the
template, FHWA is specifically requesting comments on the following:
Whether revisions are needed to the template to delete
standard terms requiring approval by the Secretary of the policies,
procedures, processes, or manuals of the States, or other State
actions, if Federal law (including regulations) does not specifically
require an approval. The FHWA encourages commenters to specify each
provision that should be revised.
Opportunities to modify the template to allow adjustments
to the review schedules for State practices or actions, including
through risk-based approaches, program reviews, process reviews, or
other means.
Provisions of the template that describe how FHWA will
perform oversight under 23 U.S.C. 106(g), such as reviewing State DOT
practices or actions through risk-based approaches, program reviews,
process reviews, or other means. The FHWA is interested in how
commenters believe FHWA could improve these provisions in the template.
Whether FHWA should allow the template to be modified by
individual division offices and State DOTs to include State-specific
provisions that do not otherwise conflict with the template and, if so,
examples of what might be included in those provisions. The FHWA is
particularly interested in whether commenters believe FHWA should allow
the addition of such State-specific provisions under Section VI. FHWA
Oversight Program Under 23 U.S.C. 106(g) and Section VII. State DOT
Oversight Responsibilities and, if so, examples of additional
provisions commenters believe might be covered in these sections.
Provisions of the template that describe project approval
actions that are assumable by State DOTs. In particular, FHWA is
seeking comments on whether those actions are adequately described or
addressed, and whether there are additional project-level approval
actions that commenters believe arise out of Title 23, U.S.C. or title
23, Code of Federal Regulations and that may be assumed by State DOTs
under 23 U.S.C. 106(c).
Provisions of the template that describes State
responsibilities for oversight of subrecipients. A State DOT is
responsible for project oversight (23 U.S.C. 106(g)(4)) for federally
assisted projects using apportioned Federal-aid highway funds. The FHWA
is interested in whether the provisions in section VII of the template
in conjunction with other existing FHWA policies, regulations,
guidance, and technical assistance are sufficient for State DOTs to
adequately provide subrecipient oversight and how commenters believe
FHWA could improve the provisions in the template.
Procedures for future updates to the S&O Agreement
template. Comments are sought on how frequently the S&O Agreement
template should be updated and on how future revisions to the S&O
Agreement template should be managed to ensure the S&O Agreement
template remains reasonably up to date without creating an overly
burdensome process.
Procedures for processing updates to FHWA-State DOT S&O
Agreements. Comments are sought on how FHWA should process and execute
revisions to existing FHWA-State DOT S&O Agreements, amendments to
existing FHWA-State DOT S&O Agreements and new FHWA-State DOT S&O
Agreements.
Further Proceedings
The FHWA is providing a 60-day comment period. After considering
public comments in response to this notice, FHWA will publish a notice
in the Federal Register that includes:
The final S&O Agreement template, including any changes
FHWA makes in response to public comments and any alternatives to those
changes.
A summary response to public comments, including the basis
for FHWA's decision whether to revise the template in response to
comments. This will include an explanation of the basis for retaining
any requirement for FHWA approval of State policies, procedures,
processes, or manuals, or other State actions if Federal law (including
[[Page 78195]]
regulations) does not specifically require the approval.
An implementation plan and schedule for use of the new
template.
Stephanie Pollack,
Deputy Administrator, Federal Highway Administration.
Stewardship and Oversight Agreement on Project Assumption and Program
Oversight By and Between the Federal Highway Administration, [State
Name] Division Office, and the [State Name DOT/STA Organization]
Section I. Background and Introduction
The Federal-aid Highway Program (FAHP) provides for a Federally-
assisted State program. In enacting section 106(c) of title 23, United
States Code (U.S.C.), as amended, Congress established authority for a
State Department of Transportation (State DOT) to carry out certain
project responsibilities traditionally handled by the Federal Highway
Administration (FHWA) through a delegation from the Secretary of the
U.S. Department of Transportation (``Secretary''). The authority in 23
U.S.C. 106(c) applies to projects that are subject to the requirements
of title 23, U.S.C. (``title 23'') because the State DOT receives
Federal funding or because the State DOT needs an FHWA action for the
project even though the project may not use Federal funds. Congress
also recognized the importance of a risk-based approach to FHWA
oversight of the FAHP, establishing requirements in 23 U.S.C. 106(g).
In addition to assumptions of responsibility, FHWA-State DOT
Stewardship and Oversight Agreements cover certain oversight activities
relating to the oversight requirements of 23 U.S.C. 106(g).
The FHWA may not assign its decisionmaking authority to a State DOT
unless authorized by law. The authorities FHWA assigns to a State DOT
under 23 U.S.C. 106(c)(1) and (2) are listed in Attachment A of the
applicable FHWA-State DOT Stewardship and Oversight Agreement. A
decision, determination, or action carried-out by a State DOT under the
authority of a Stewardship and Oversight Agreement (``Agreement'') does
not constitute an eligibility, participation, obligation,
reimbursement, authorization, or compliance decision by or for FHWA.
For clarity, Attachment A also lists certain other actions FHWA may
have allowed a State DOT to undertake based on delegation or assumption
provisions in other Federal laws. As noted in those Attachment A
listings, a State DOT exercise of those authorities is governed by
separate agreements between FHWA and that State DOT.
For project responsibilities that are not assumed by a State DOT
under 23 U.S.C. 106(c), and are not otherwise delegated or assigned in
accordance with another Federal law, FHWA may authorize a State DOT to
perform work needed to reach the FHWA decision point, or to implement
FHWA's decision. However, such decisions themselves are reserved to
FHWA.
Section II. Intent and Purpose of Agreement
This Stewardship and Oversight Agreement (``Agreement'')
establishes the roles and responsibilities of the FHWA [State name]
Division Office and the [State name DOT/STA organization
(abbreviation)] with respect to certain title 23 project approvals and
related responsibilities, and FAHP oversight activities. Nothing in
this Agreement affects the Secretary's authority, or authority
delegated to FHWA, to oversee compliance with Federal requirements.
These authorities include but are not limited to 23 U.S.C. 114, under
which the Secretary has the right to conduct such inspections and take
such corrective action as the Secretary determines to be appropriate.
This Agreement carries out 23 U.S.C. 106(c)(3), which requires FHWA
and the State DOT enter into an agreement relating to the extent to
which the State DOT assumes project responsibilities pursuant to
section 106(c). This Agreement also documents certain oversight
activities that FHWA and the [State name DOT/STA abbreviation] will use
to efficiently and effectively deliver the FAHP.
Section IV of this Agreement covers assumption of project approvals
on the National Highway System (NHS). Section V covers assumption of
project approvals off the NHS.
The Project Action Responsibility Matrix, Attachment A to this
Agreement, describes responsibilities that the [State name DOT/STA
abbreviation] assumes from FHWA pursuant to 23 U.S.C. 106(c) and other
legal authorities.
Upon execution of this Agreement, Attachment A controls and, except
as specifically noted in Attachment A (including any amendment thereto
done in accordance with section VIII) and sections IV and V of this
Agreement, no other agreements, attachments, or other documents shall
have the effect of delegating or assigning FHWA approvals to the [State
name DOT/STA abbreviation] under 23 U.S.C 106(c), or have the effect of
altering Attachment A.
Section III. Permissible Areas of Assumption Under 23 U.S.C. 106(c)
FHWA has determined the activities and actions that are assumable
under 23 U.S.C. 106(c). Those activities and actions are listed in a
template issued by FHWA to create this Agreement and cover only
activities or actions in the following areas:
A. Design, which includes preliminary engineering, engineering, and
design-related services directly relating to the construction of a
FAHP-funded project, including engineering, design, project development
and management, construction project management and inspection,
surveying, mapping (including the establishment of temporary and
permanent geodetic control in accordance with specifications of the
National Oceanic and Atmospheric Administration), and architectural-
related services.
B. Plans, specifications and estimates (PS&E), which represents an
array of actions and approvals required before authorization of
construction and carried out during construction. The PS&E package
includes standards, drawings, specifications, project estimates,
certifications relating to completion of right-of-way acquisition and
relocation, utility work, and railroad work.
C. Contract awards, which include procurement of professional and
other consultant services and construction-related services to include
advertising, evaluating, and awarding contracts.
D. Inspections, which include general contract administration,
material testing and quality assurance, review, and inspections of
Federal-aid contracts as well as final inspection/acceptance.
E. Approvals and related responsibilities affecting real property
as provided in 23 CFR 710.201(h) and any successor regulation.
The [State name DOT/STA abbreviation] is to exercise any and all
assumptions of the FHWA's responsibilities in accordance with the
Federal laws, regulations, policies, Executive Orders, and procedures
that would apply if the responsibilities were carried out by FHWA. For
all projects and programs carried out under title 23, the [State name
DOT/STA abbreviation] will comply with title 23 and all applicable non-
title 23 Federal-aid program requirements.
Section IV. Assumption of Responsibilities for FederaL-Aid Projects on
the NHS
For projects under title 23 that are on the NHS, including projects
on the Interstate System, the [State name DOT/
[[Page 78196]]
STA abbreviation] may assume FHWA's title 23 responsibilities for
activities or actions assumable under 23 U.S.C. 106(c) if the FHWA
[State name] Division Office determines that assumption of
responsibilities is appropriate and the [State name DOT/STA
abbreviation] agrees.
A. The activities or actions on the NHS assumed by the [State name
DOT/STA abbreviation] under this Agreement are listed in Attachment A.
B. Activities or actions for which the [State name DOT/STA
abbreviation] has assumed the FHWA's responsibilities apply program-
wide except when superseded by provisions in a stewardship and
oversight plan adopted by the FHWA [State name] Division Office for a
specific project. Additional discussion on FHWA project involvement is
included in section VI.D of this Agreement.
C. In accordance with 23 U.S.C. 106(c)(4), the DOT Secretary may
define high-risk categories for Interstate projects on a national
basis, a State-by-State basis, or a national and State-by-State basis.
A State DOT may not assume responsibilities for Interstate projects in
a designated category. Currently, FHWA has not designated any high-risk
categories applicable to [State name] in accordance with 23 U.S.C.
106(c)(4). If the FHWA makes a future designation that applies to
[State name], then that designation will immediately supersede the
assumptions of responsibilities elsewhere in this Agreement.
Section V. Assumption of Responsibilities for Federal-Aid Projects Off
the NHS
For projects under title 23 that are not on the NHS, the [State
name DOT/STA abbreviation] must assume FHWA's title 23 responsibilities
for activities or actions assumable under 23 U.S.C. 106(c) unless the
[State name DOT/STA abbreviation] determines that assumption of
responsibilities is not appropriate (23 U.S.C. 106(c)(2)).
A. The activities or actions off the NHS assumed by the [State name
DOT/STA abbreviation] under this Agreement are listed in Attachment A.
B. Activities or actions for which the [State name DOT/STA
abbreviation] has assumed the FHWA's responsibilities apply programwide
except when superseded by provisions in a stewardship and oversight
plan for a specific project adopted by the FHWA [State name] Division
Office. For non-NHS projects, the [State name DOT/STA abbreviation]
must determine that superseding an assumption listed in Attachment A
for a specific project is appropriate. Additional discussion on FHWA
project involvement is included in section VI.D of this Agreement.
C. Except as provided in 23 U.S.C.109(o), the [State name DOT/STA
abbreviation] is to exercise FHWA's approvals and related
responsibilities on these projects in accordance with Federal laws,
regulations, policies, Executive Orders, and procedures that would
apply if the responsibilities were carried out by FHWA.
D. In accordance with 23 U.S.C. 109(o), non-NHS projects shall be
designed and constructed in accordance with State laws, regulations,
directives, safety standards, design standards, and construction
standards, except that a local jurisdiction may use a roadway design
guide recognized by FHWA and adopted by the local jurisdiction that is
different from the roadway design guide used by the State in which the
local jurisdiction is located for the design of projects on all
roadways under the ownership of the local jurisdiction for which the
local jurisdiction is the project sponsor, provided that the design
complies with all other applicable Federal laws.
Section VI. FHWA Oversight Program Under 23 U.S.C. 106(g)
The Secretary must establish an oversight program to monitor the
effective and efficient use of funds authorized to carry out the FAHP
(23 U.S.C. 106(g)). This includes FHWA oversight of the [State name
DOT/STA abbreviation] processes and management practices, including
those involved in carrying out the approvals and related
responsibilities assumed by the [State name DOT/STA abbreviation] under
23 U.S.C. 106(c).
Section 106(g) requires, at a minimum, FHWA's oversight program be
responsive to all areas relating to financial integrity and project
delivery. To carry out the requirements of 23 U.S.C. 106(g), FHWA uses
a risk management framework to evaluate financial integrity, project
delivery, and other aspects of the FAHP. The objective is to balance
risk while considering staffing, budget resources, and the State's
transportation needs.
The FHWA [State name] Division Office and the [State name DOT/STA
abbreviation] may use a variety of methods to identify, analyze, and
manage risks and develop response strategies, such as oversight
techniques, manuals and operating agreements, stewardship and oversight
indicators, and FHWA project involvement.
Oversight Techniques
Techniques the FHWA [State name] Division Office and the [State
name DOT/STA abbreviation] may use to identify and analyze risks and
develop response strategies include, but are not limited to, the
following:
program assessments;
FHWA Financial Integrity Review and Evaluations reviews;
program reviews;
certification reviews;
recurring or periodic reviews such as the FHWA Compliance
Assessment Program;
inspections of project elements or phases.
Manuals and Operating Agreements
The [State name DOT/STA abbreviation] manuals, agreements and other
control, monitoring, and reporting documents that are used on Federal-
aid projects are listed in Attachment B to this Agreement.
Stewardship and Oversight Indicators
[Drafting note: Select the paragraph that applies.]
Option 1
The FHWA [State name] Division Office and the [State name DOT/STA
abbreviation] have established stewardship and oversight indicators
(indicators) to help monitor performance of responsibilities assumed
under this Agreement. Indicators are those intended to provide evidence
of how well a State DOT assumption of responsibilities is functioning.
Indicators set targets, track trends, and may help determine when
countermeasures and actions are implemented or adjusted. The indicators
are agreed to as provided in Attachment C.
Option 2
The FHWA [State name] Division Office and the [State name DOT/STA
abbreviation] have not established indicators as part of this
Agreement.
FHWA Project Involvement
The FHWA [State name] Division Office may select projects
(individually or by type) for risk-based FHWA project involvement and
stewardship and oversight activities. In some instances, the
programwide assumption by the [State name DOT/STA abbreviation] of
FHWA's responsibilities under Attachment A to this Agreement may be
superseded by provisions in a stewardship and oversight plan for a
specific project, per sections IV and V of this Agreement. The FHWA
[State name] Division Office will document
[[Page 78197]]
the additional activities in a stewardship and oversight plan for the
affected project(s).
Section VII. State DOT Oversight Responsibilities
Oversight of State DOT Performance of Assumed
Responsibilities.This section addresses how 23 U.S.C. 106(c) assumed
authorities are carried out by the [State name DOT/STA abbreviation].
The actions include monitoring to assure that the [State name DOT/STA
abbreviation] is properly carrying out its responsibilities in
accordance with this Agreement. The [State name DOT/STA abbreviation]
is responsible for demonstrating to FHWA how it is carrying out its
responsibilities in accordance with this Agreement. The [State name
DOT/STA abbreviation] will provide information to the FHWA [State name]
Division Office upon request.
The [State name DOT/STA abbreviation] represents that processes,
procedures, and practices from manuals, agreements, and other documents
listed in Attachment B to this Agreement comply with applicable Federal
requirements.
Subrecipient Oversight
The [State name DOT/STA abbreviation] is responsible for ensuring
that its subrecipients meet applicable Federal requirements (2 CFR
200.332). This includes but is not limited to providing adequate
oversight of sub-recipients with respect to both the subaward and any
23 U.S.C. 106(c) assumed responsibilities the [State name DOT/STA
abbreviation] delegates to a subrecipient. The [State name DOT/STA
abbreviation] is responsible for determining that subrecipients of
Federal funds are suitably staffed and equipped and have adequate
project delivery systems and sufficient accounting controls to properly
manage these funds (23 U.S.C. 106(g)).
Section VIII. Agreement Execution and Modifications
A. Agreement Execution
This Agreement is effective when fully executed by the FHWA [State
name] Division Administrator and authorized representative of the
[State name DOT/STA abbreviation]. The [State name DOT/STA
abbreviation] duly-authorized official shall execute this Agreement and
then submit it to the FHWA [State name] Division Administrator, who
shall sign this Agreement last.
B. Agreement Modifications
The FHWA [State name] Division Office and the [State name DOT/STA
abbreviation] acknowledge that Agreement modifications (minor revisions
or amendments) are needed periodically. Either party may initiate a
request to modify this Agreement.
1. Minor Revisions
The FHWA [State name] Division Office and the [State name DOT/STA
abbreviation] may make minor revisions to this Agreement without an
amendment. For purposes of this Agreement, a minor revision makes a
technical correction, addresses non-substantive changes such as a
change in points-of-contact or document names, or revises aspects of
procedures that do not materially change the terms of this Agreement.
Changes to Attachments B or C are considered minor revisions. Minor
revisions are recorded in a change log by the FHWA [State name]
Division Office. Minor revisions may be executed without FHWA legal
sufficiency review or coordination with FHWA's Office of
Infrastructure.
2. Amendments
Modifications to this Agreement that exceed the definition of a
minor revision in paragraph B.1. of this section shall require
execution of an amendment to this Agreement. Amendments include any
change to Attachment A. The amendment shall follow the execution
procedure set forth in paragraph A of this section. Amendments require
FHWA legal sufficiency review and coordination with FHWA's Office of
Infrastructure.
New Agreement
This Agreement will be replaced in its entirety and a new Agreement
executed between the FHWA [State name] Division Office and the [State
name DOT/STA abbreviation] when mutually agreed upon by the parties, or
as requested by the FHWA Office of Infrastructure. New Agreements
require FHWA legal sufficiency review and coordination with FHWA's
Office of Infrastructure prior to execution.
The electronic Agreement file shall contain the executed Agreement,
any change logs, and amendments.
IX. Agreement Term and Termination
A. This Agreement shall have a term of [insert term of no greater
than six (6) years] years, effective on the date of the signature of
the FHWA [State name] Division Administrator in accordance with section
VIII(A) of this Agreement.
B. Before the expiration of the term of this Agreement, a new
agreement must be executed by both parties or the Agreement will expire
(refer to section VIII.C. and IX.D.).
C. The FHWA [State name] Division Office may terminate this
Agreement at any time if the FHWA [State name] Division Office
determines that this Agreement is no longer in the public interest.
Except in an extraordinary circumstance where immediate action is
needed, prior to termination, the FHWA [State name] Division Office
will issue a written notice to the [State name DOT/STA abbreviation]
describing the FHWA's [State name] Division Office concerns and give
the [State name DOT/STA abbreviation] a reasonable period of time to
submit a written response addressing the FHWA [State name] Division
Office concerns. The FHWA [State name] Division Office shall review the
[State name DOT/STA abbreviation] response and make a final
determination within 30 business days of receipt of the [State name
DOT/STA abbreviation] response. The FHWA [State name] Division Office
will notify the [State name DOT/STA abbreviation] in writing of the
final determination and the effective date of any termination.
D. Expiration or termination of this Agreement shall mean that the
assumption of project approvals by the [State name DOT/STA
abbreviation] as set forth in this Agreement and Attachment A hereto is
automatically revoked upon the date of expiration or termination and
the [State name DOT/STA abbreviation] must immediately cease exercising
any decision, determination, or action under the authority of this
Agreement, including any amendments.
Attachment A: Project Action Responsibility Matrix
This matrix identifies the Federal-aid highway program (FAHP)
project approvals and related responsibilities. The matrix specifies
which actions are assumed by the [State name DOT/STA abbreviation]
pursuant to this Stewardship and Oversight Agreement (``Agreement'')
and certain other applicable authorities as specified in the tables in
this Attachment A.
The [State name DOT/STA abbreviation] is responsible for ensuring
all individual elements of the project are eligible for FAHP funding.
Where the [State name DOT/STA abbreviation] assumes authority to make a
decision, approval, determination or action, the [State name DOT/STA
abbreviation] decision does not constitute an eligibility, obligation,
reimbursement, authorization, or compliance decision by or for the
Federal Highway Administration (FHWA). Final
[[Page 78198]]
decisions on those matters must be made by FHWA.
Table 1--Financial Management
----------------------------------------------------------------------------------------------------------------
Agency
# Action Agency responsible non-
responsible NHS NHS
----------------------------------------------------------------------------------------------------------------
1............................. Review and accept financial plan and FHWA............. FHWA.
annual updates for Federal major projects
[23 U.S.C. 106(h)].
2............................. Review cost estimates for Federal major FHWA............. FHWA.
projects [23 U.S.C. 106(h)].
3............................. Obligate funds/authorize Federal-aid FHWA............. FHWA.
project agreement (including advance
construction authorization and
conversion), modifications, and project
closures (project authorizations) [23
U.S.C. 106(a)(2), 23 CFR 630.106,
630.703, 630.709].
4............................. Authorize to advertise for bids when all FHWA or STATE.... STATE.
preconditions are met [23 CFR 635.112(a),
635.309].
5............................. Approve reimbursements including FHWA............. FHWA.
authorizing current bill (23 U.S.C. 121).
6............................. Approval of reimbursement for bond-issue FHWA............. FHWA.
projects [23 U.S.C. 122, 23 CFR part 140,
Subpart F].
----------------------------------------------------------------------------------------------------------------
Table 2--Environment
----------------------------------------------------------------------------------------------------------------
Agency
# Action Agency responsible non-
responsible NHS NHS
----------------------------------------------------------------------------------------------------------------
7............................. EA/FONSI, EIS/ROD, 4(f), 106, 6(f) and FHWA or FHWA or
other approval actions required by Administered in Administered in
Federal environmental laws and accordance with accordance with
regulations (Note: The FHWA may assign 23 U.S.C. 327 23 U.S.C. 327
these NEPA actions and other MOU. MOU.
environmental responsibilities to a State
DOT as provided by 23 U.S.C. 327).
8............................. Categorical exclusion approval actions FHWA or FHWA or
[Note: The FHWA may assign this action Administered in Administered in
and other FHWA environmental accordance with accordance with
responsibilities to a State DOT as applicable 23 applicable 23
provided by 23 U.S.C. 326 and 327. The U.S.C. 326 or U.S.C. 326 or
FHWA also may administratively delegate 327 MOUs, or 327 MOUs, or
responsibility for categorical exclusion Programmatic Programmatic
determinations to a State DOT through a Categorical Categorical
programmatic agreement pursuant to Exclusion Exclusion
Section 1318(d) of MAP-21 and Agreement. Agreement.
implementing regulations in 23 CFR
771.117(g)].
----------------------------------------------------------------------------------------------------------------
Table 3--Preliminary Design
----------------------------------------------------------------------------------------------------------------
Agency
# Action Agency responsible non-
responsible NHS NHS
----------------------------------------------------------------------------------------------------------------
9............................. Approval before utilizing a consultant to FHWA or FHWA or
act in a management support role for the Administered in Administered in
contracting agency [23 CFR accordance with accordance with
172.7(b)(5)(i)]. procedures procedures
approved per 23 approved per 23
CFR 172.5(c). CFR 172.5(c).
10............................ Approval of noncompetitive procurement FHWA or STATE.... STATE.
method for engineering and design-related
services [23 CFR 172.7(a)(3)].
11............................ Approve exceptions to design standards [23 FHWA or STATE.... Not subject to 23
CFR 625.3(f)]. CFR 625.3(f).
12............................ Airport highway clearance coordination and FHWA or STATE.... STATE.
respective public interest finding (if
required).
[23 CFR 620.104]..........................
13............................ Approve project management plan for FHWA............. FHWA.
Federal major projects [23 U.S.C. 106(h)].
14............................ Approval of Interstate System access FHWA............. Not subject to 23
change [23 U.S.C. 111]. U.S.C. 111.
15............................ Determine the engineering and operational FHWA............. Not subject to
acceptability of points of ingress or 23 U.S.C. 111(e).
egress with the Interstate System
(justification reports) for new freeway-
freeway interchanges (system),
modification of freeway-freeway
interchanges, and new partial
interchanges or new ramps to/from
continuous frontage roads that create a
partial interchange [23 U.S.C. 111(e)].
16............................ Determine the engineering and operational FHWA or Not subject to 23
acceptability of points of ingress or Administered in U.S.C. 111(e).
egress with the Interstate System Accordance with
(justification reports) for new and Programmatic
modified freeway-to-crossroad (service) Agreement.
interchanges, and completion of basic
movements at existing partial
interchanges. [23 U.S.C. 111(e)].
17............................ Approve innovative and public-private FHWA............. FHWA.
partnership projects in accordance with
TE-045, SEP-14, SEP-15, or SEP-16. [23
U.S.C. 502(b)].
18............................ Approve any betterment to be incorporated FHWA............. FHWA.
into the project and for which emergency
relief funding is requested (23 U.S.C.
125, 23 CFR 668.109).
[[Page 78199]]
19............................ Prior written approval of the Federal FHWA............. FHWA.
awarding agency for the direct charge of
up-front acquisition cost of equipment (2
CFR 200.439).
----------------------------------------------------------------------------------------------------------------
Table 4--Final Design
----------------------------------------------------------------------------------------------------------------
Agency
# Action Agency responsible non-
responsible NHS NHS
----------------------------------------------------------------------------------------------------------------
20............................ Approve retaining right-of-way FHWA or STATE.... STATE.
encroachments [23 CFR 1.23(b), 1.23(c)].
21............................ Approve use of publicly owned equipment FHWA or STATE.... STATE.
[23 CFR 635.106].
22............................ Concur in use of publicly furnished FHWA or STATE.... STATE.
materials [23 CFR 635.407(a)].
23............................ Determine use of more costly signing, FHWA or STATE.... STATE.
pavement marking and signal materials (or
equipment) is in the public interest [23
CFR 655.606].
24............................ Exception to designation of Interstate FHWA or STATE.... Not subject to23
project as significant for work zones [23 CFR 630.1010(d).
CFR 630.1010(d)].
25............................ Determination that a United States Coast FHWA............. FHWA.
Guard Permit is not required for bridge
construction [23 CFR 650.805, 650.807, 23
U.S.C. 144(c)].
----------------------------------------------------------------------------------------------------------------
Table 5--Realty
----------------------------------------------------------------------------------------------------------------
Agency
# Action Agency responsible non-
responsible NHS NHS
----------------------------------------------------------------------------------------------------------------
26............................ Completion of ROW clearance, utility, and FHWA or STATE.... STATE.
railroad work concurrently with
construction: Make feasibility/
practicability determination for allowing
authorization to advertise for bids or to
proceed with force account construction
prior to completion of ROW clearance,
utility and railroad work [23 CFR
635.309(b)].
27............................ Approve non-highway use and occupancy of FHWA for STATE.
real property interests [23 CFR 1.23(c), Interstate.
710.405]. FHWA or STATE for
Non-Interstate...
28............................ Approve disposal at fair market value of FHWA for STATE.
real property acquired with Federal-aid Interstate.
assistance, including disposals of access FHWA or STATE for
control [23 CFR 710.403(e), 710.409]. Non-Interstate.
29............................ Approve disposal at less than fair market FHWA............. FHWA.
value of federally funded right-of-way,
including disposals of access control [23
U.S.C. 156, 23 CFR 710.403(e)].
30............................ Conditional ROW certification, bid FHWA or STATE.... STATE.
advertisement: Make public interest
finding on whether State may proceed with
bid advertisement even though ROW
acquisition/relocation activities are not
complete for some parcels [23 CFR
635.309(c)(3)(i)].
31............................ Conditional ROW certification, FHWA............. FHWA.
construction--Make finding of exceptional
circumstances that make it in the public
interest to allow State to proceed with
construction even though ROW acquisition/
relocation activities are not complete
for some parcels [23 CFR
635.309(c)(3)(ii)].
32............................ Approve hardship and protective buying [23 FHWA............. FHWA.
CFR 710.503].
33............................ Requests for credits toward the non- FHWA............. FHWA.
Federal share of construction costs for
early acquisitions, donations or other
contributions applied to a project [23
U.S.C. 323, 23 CFR 710.507].
34............................ Federal land transfers [23 CFR part 710, FHWA............. FHWA.
subpart F].
35............................ Functional replacement of property [23 CFR FHWA............. FHWA.
710.509].
36............................ Waiver of the policy of the availability FHWA............. FHWA.
of comparable replacement dwelling before
displacement under specified
circumstances [49 CFR 24.204(b)].
----------------------------------------------------------------------------------------------------------------
Table 6--PS&E and Advertising
----------------------------------------------------------------------------------------------------------------
Agency
# Action Agency responsible non-
responsible NHS NHS
----------------------------------------------------------------------------------------------------------------
37............................ Approve PS&E [23 CFR 635.309(a)].......... FHWA or STATE.... STATE.
38............................ Approve utility or railroad force account FHWA or STATE.... STATE.
work (23 CFR 140.916, 645.113, 646.216).
39............................ Approve utility and railroad agreements FHWA or STATE.... STATE.
(23 CFR 140.916, 645.113, 646.216).
40............................ Approve use of consultants by utility and FHWA or STATE.... STATE.
railroad companies [23 CFR 645.109(b),
646.216(b)].
41............................ Approve exceptions to maximum railroad FHWA or STATE.... STATE.
protective insurance limits (23 CFR
140.916, 646.111).
42............................ Approve use of guaranty and warranty FHWA or STATE.... STATE.
clauses for projects other than design-
build projects [23 CFR 635.413(b)].
43............................ Recovery of railroad material--Approval of FHWA or STATE.... STATE.
additional measures for restoration of
areas affected by the removal of salvaged
material for Railroad work (23 CFR
140.908).
[[Page 78200]]
44............................ Approve use of lump sum payments to FHWA or STATE.... STATE.
reimburse railroad for work by its forces
[23 CFR 646.216(d)(3)].
45............................ Waive Buy America provisions (23 CFR FHWA............. FHWA.
635.410).
46............................ Training special provision--Approval of FHWA............. FHWA.
new project training programs [23 CFR
230.111(d), 230.111(e)].
----------------------------------------------------------------------------------------------------------------
Table 7--Contract Advertisement and Award
----------------------------------------------------------------------------------------------------------------
Agency
# Action Agency responsible non-
responsible NHS NHS
----------------------------------------------------------------------------------------------------------------
47............................ Approve cost-effectiveness determinations FHWA or STATE.... STATE.
for construction work performed by
contract awarded by other than
competitive bidding or by force account
(23 CFR 635.104, 635.204).
48............................ Approve emergency determinations for FHWA or STATE.... STATE.
construction work performed by contract
awarded by other than competitive bidding
or by force account (23 CFR 635.104,
635.204).
49............................ Subrecipient project administration-- FHWA or STATE.... STATE.
Approve arrangements for local agency to
serve as the supervising agency for the
project (23 CFR 635.105).
50............................ Approve advertising period less than 3 FHWA or STATE.... STATE.
weeks [23 CFR 635.112(b)].
51............................ Approve addenda during advertising period FHWA or STATE.... STATE.
[23 CFR 635.112(c)].
52............................ Concur in award of contract or rejection FHWA or STATE.... STATE.
of all bids (23 CFR 635.114).
53............................ Approval of design-build requests-for- FHWA or STATE.... STATE.
proposals (RFP) and addenda for major
changes to the RFP during solicitation
period [23 CFR 635.112(i)(4)].
54............................ Approve award to the next low bidder [23 FHWA or STATE.... STATE.
CFR 635.114(f)].
----------------------------------------------------------------------------------------------------------------
Table 8--Construction
----------------------------------------------------------------------------------------------------------------
Agency
# Action Agency responsible non-
responsible NHS NHS
----------------------------------------------------------------------------------------------------------------
55............................ Approve contract changes and extra work FHWA or STATE.... STATE.
(23 CFR 635.120).
56............................ Approve contract time extensions [23 CFR FHWA or STATE.... STATE.
635.120, 635.121(b)].
57............................ Concur in use of mandatory borrow/disposal FHWA or STATE.... STATE.
sites (23 CFR 635.407).
58............................ Approval of administrative settlements and FHWA or STATE.... STATE.
contract claim awards and settlements (23
CFR 140.505, 635.124).
59............................ Concur in termination of construction FHWA or STATE.... STATE.
contracts [23 CFR 635.125(b)].
----------------------------------------------------------------------------------------------------------------
Table 9--Construction Manager/General Contractor (CM/GC) and Indefinite Delivery/Indefinite Quantity (ID/IQ)
Contracting
----------------------------------------------------------------------------------------------------------------
Agency
# Action Agency responsible non-
responsible NHS NHS
----------------------------------------------------------------------------------------------------------------
60............................ Approval of advertising for bids or FHWA or STATE.... STATE.
proposals for a CM/GC construction
services phase contract [23 CFR
635.504(b)(6)].
61............................ Determination of indirect cost rate for FHWA or STATE.... STATE.
preconstruction services for a CM/GC
project in accordance with [23 CFR
635.504(e)(2)].
62............................ Approval of preconstruction price and cost/ FHWA or STATE.... STATE.
price analysis for preconstruction
services for a CM/GC project [23 CFR
635.506(b)(2)].
63............................ Approval of price estimate for FHWA or STATE.... STATE.
construction costs for the entire project
for CM/GC project [23 CFR 635.506(d)(2)].
64............................ Approval of construction price analysis FHWA or STATE.... STATE.
and agreed price for construction
services of a CM/GC project or portion of
the project [23 CFR 635.506(d)(4)].
65............................ Approval of CM/GC project preconstruction FHWA or STATE.... STATE.
services contract award [23 CFR
635.506(e)].
66............................ Concur in advertising an ID/IQ FHWA or STATE.... STATE.
solicitation prior to completion of NEPA
[23 CFR 635.605(a)(2)].
67............................ Concur in awarding an ID/IQ contract prior FHWA or STATE.... STATE.
to completion of NEPA [23 CFR
635.605(a)(3)].
68............................ Approve a time extension of an ID/IQ FHWA or STATE.... STATE.
contract [23 CFR 635.604(a)(6)(i)].
----------------------------------------------------------------------------------------------------------------
[[Page 78201]]
Attachment B (Drafting Example): Manuals, Agreements, Control,
Monitoring, And Reporting Documents
State department of transportation (State DOT) manuals, agreements
and other control, monitoring, and reporting documents that are used on
Federal-aid projects. (The following provides examples of the types of
manuals, guidelines and procedures that will be listed in Attachment B
and the type of information needed for each document. The format is
optional and the items listed are not all inclusive or applicable to
all States.)
Example for Construction Specifications
Standard Specifications
[cir] Elements that require the Federal Highway Administration
(FHWA) approval:
[ssquf] Specifications that will be used on the National Highway
System (NHS). (23 CFR 625.3)
Example State DOT Manuals That Will Be Used on Federal-Aid Projects
Highway Design Manual--information and guidance to design road
projects.
[cir] Elements that require FHWA approval:
[ssquf] Roadway design standards for 3R and preventative
maintenance projects on the NHS. [23 CFR 625.3, 625.4(a)(3)]
[cir] Elements required by Federal law or regulation included in
this manual that do not require FHWA approval:
[ssquf] Erosion and Sediment Control Guidelines (23 CFR 650.211)
Right of Way Manual--right-of-way organization, policies, and
procedures. Describes functions and procedures for all phases of the
real estate program, including appraisal and appraisal review,
negotiation and eminent domain, property management, and relocation
assistance.
[cir] Elements that require FHWA approval:
[ssquf] All elements. Right-of-way organization, policies, and
procedures (23 CFR 710.201)
Additional Manuals, Agreements, Control, Monitoring, and Reporting
Documents
Noise Analysis and Abatement Policy (23 CFR part 772)
Programmatic Agreement for Processing Interstate Access
Requests (MAP-21, Section 1505)
Asset Management Plan [23 U.S.C 119(e)(5)]
Value Engineering Policy and Procedures [23 CFR 627.1]
Quality Assurance Program [23 CFR 637.205]
Construction Manager/General Contractor (CM/GC) procurement
procedures [23 CFR 635.504(c)]
Pavement Design Policy [23 CFR part 626]
Attachment C (Drafting Example): Stewardship and Oversight Indicators
Indicators used to monitor assumptions of responsibility per
section VI. C. of this Agreement. (This list is provided as an example.
The format is optional and the items listed are not all inclusive or
applicable to all states).
Example Stewardship a6nd Oversight Indicator
Fiscal year Disadvantaged Business Enterprise (DBE)
overall participation rate.
Percent of DBE goal achieved.
Average number of bidders per project per type of work per
year.
Percent of projects with low bid within +/- 10 percent of
Engineer's Estimate.
Percentage of projects that are awarded within 120 days of
authorization.
Number of National Bridge Inspection Standards metrics
that are fully compliant.
Percent of environmental mitigation commitments completed.
Average number of days between the date of project final
acceptance by State department of transportation and project close out
date in the Financial Management Information System (FMIS).
Percent of projects closed out with final costs within 110
percent of award amount.
Percent of projects closed out with final time expended
within 135 percent of original contract time.
Percent of current year projects in the State
Transportation Improvement Program advanced as scheduled.
Percent of projects with right-of-way (ROW) acquired by
acquisition due date.
Number of projects with conditional ROW certifications.
Number of disposals of excess ROW below fair market value.
Number of non-Interstate access breaks and/or
encroachments approved.
Number of modifications to project end dates in FMIS.
Expenditures determined to be ineligible for Federal
participation.
[FR Doc. 2022-27705 Filed 12-20-22; 8:45 am]
BILLING CODE 4910-22-P