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CHAPTER 2: EXEMPTIONS UNDER TITLE 23 SECTION 106

Only certain actions and authorities rooted in Title 23 USC are able to be delegated under 23 USC 106. However, non-Title 23 actions and authorities such as those under the Clean Air Act; Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970; the Civil Rights Act of 1964, and the National Environmental Policy Act of 1969 (except as permitted under SAFETEA-LU Sections 6004 and 6005) cannot be delegated when a State requests exemption of direct Federal oversight under 23 USC 106. These non-Title 23 requirements apply to all Federal-aid projects.

In addition to the provisions of this Agreement, the Ohio Division and ODOT have established a number of administrative agreements to streamline the delivery of the Federal-aid program. These agreements are listed in Appendix C.

Project Oversight

NHS-projects are defined by system, irrespective of Federal funding source.
* In addition, other projects may be selected by mutual agreement by FHWA & ODOT for FHWA oversight. Examples of projects likely to be selected are:

• Complex Emergency Relief Projects
• Complex Urban Reconstruction Projects
• Major or Complex Non-NHS Structure Projects
• Complex Local Public Agency (LPA) Projects

It is FHWA's goal to maintain contact with each of the ODOT District Offices. In those cases where the number of FHWA oversight projects is less than 6 based on the above criteria, additional projects will be mutually selected on a case-by-case basis to ensure a minimum of 6 FHWA oversight projects per District.

FHWA may become actively involved in any Federal-aid project (including those which are delegated to ODOT) that has unique features, high-risk elements, unusual circumstances, or if the project is included in a process or other review.

For additional information on oversight responsibility by ODOT and FHWA, see the discussion and charts in the various program area chapters.

Delegated Program and Project Responsibilities

ODOT Responsibilities

1. For all delegated projects or programs, ODOT shall comply with Title 23 and certain non-Title 23, USC Federal-aid program requirements, such as metropolitan and statewide planning, environment, procurement of engineering and design-related service contracts, Title VI of the Civil Rights Act, participation by disadvantaged business enterprises, prevailing wage rates, and acquisition of right-of-way, etc.
2. For all delegated projects or programs, ODOT shall assure that right-of-way approval; utility approval; environmental approvals; railroad approval and related activities; design approval; design exceptions (NHS); PS&E approval; concurrence in award; and construction-related activities are performed in accordance with State policies, practices, and standards, and in accordance with all requirements of Title 23, USC.
3. For delegated projects or programs that are developed and administered by local agencies, ODOT shall provide the necessary review and approval to assure compliance with Federal requirements. The States will be responsible for determining that sub-recipients of Federal funds have adequate staffing, project delivery systems, and sufficient accounting control. ODOT is responsible for the effective and efficient use of all Federal funds in the State of Ohio and is ultimately accountable to FHWA for ensuring compliance with Federal-aid requirements on such projects.
4. For Design-Build projects, ODOT assumes the FHWA's Title 23 responsibilities for "one-step" Design-Build projects, based on the system and type of project. For any "two-step" Design-Build projects, regardless of system, FHWA will be responsible for project oversight.

FHWA Responsibilities

For projects or programs delegated toODOT, FHWA retains authority for the following actions and approvals:

1. All Federal responsibilities for planning and programming oversight specified in 23 USC 134 and 135
2. Federal air quality conformity determinations required by the Clean Air Act
3. Obligation of funds
4. Waivers to Buy America requirements
5. SEP-14/SEP-15 methods
6. Civil Rights program approvals
7. Environmental approvals, except those administratively delegated underprogrammatic agreements
8. Addition of access points on the Interstate System
9. Use of Interstate airspace for non-highway related purposes
10. Hardship acquisition and protective buying
11. Modifications to project agreements
12. Final vouchers

Major Projects

The "Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users" (SAFETEA-LU) Section 1904(a) require Project Management Plans and an Annual Financial Plan for projects with an estimated cost of $500 million. In addition, SAFETEA-LU requires that Annual Financial Plans be prepared for projects with an estimated cost from $100-$500 million.

Project Management Plans document 1) the procedures and processes that are in effect to provide timely information to the project decision makers to effectively manage scope, costs, schedules, and quality of, and the Federal requirements applicable to, the project; and 2) the role of the agency leadership and management team in the delivery of the project. Financial Plans are 1) based on detailed estimates of the cost to complete the project; and 2) provide for the annual submission of updates to the FHWA that are based on reasonable assumptions of future increases in the cost to complete the project.

Financial Plans

FHWA review and approval of the initial Financial Plan for projects >$500 million is required prior to authorization of Federal-aid funds (i.e. before Right-of-Way acquisition or Construction authorizations). ODOT will provide annual updates to the Financial Plans. FHWA will review and approve the Financial Plan annual updates.

Project Management Plans

Prior to authorization of Federal-aid funds (i.e. before Right-of-Way acquisition and Construction), ODOT will update the PMP and FHWA will review/approve the updated PMP. ODOT will update the PMPs, as appropriate, and FHWA will review/approve the updated PMPs accordingly.

Summary

FHWA and ODOT mutually agree to the exemptions defined in this section of the Stewardship and Oversight Agreement as allowed by Title 23 Section 106 and further agree to abide by the procedures, practices, and business standards outlined throughout this Stewardship and Oversight Agreement.

This Agreement may be modified upon mutual agreement of both parties.

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