FHWA Pennsylvania Policies and Guidance

1. Introduction

   The Federal Highway Administration (FHWA) and the Pennsylvania Department of Transportation (PENNDOT) hereby enter into this Stewardship & Oversight Agreement (hereafter referred to as "Agreement") for the purpose of administering the Federal-aid Highway Program in Pennsylvania. This Agreement defines select stewardship and approval roles for Federal-aid design and construction projects in Pennsylvania. It includes PENNDOT's assumption of certain FHWA oversight role and approval responsibilities on specific categories of projects and it also encompasses PENNDOT's Certification proposal for administering Non-Interstate National Highway System (NHS) Projects. This Agreement categorizes design and construction projects as Federal Oversight (FO), PENNDOT Oversight (PO)-NHS, or PENNDOT Oversight (PO)-Non-NHS on the basis of highway system and cost. Further, it delegates to PENNDOT certain non-project approval actions that would otherwise be taken by FHWA.

2. Statutory Basis

   The principal statutory and regulatory basis for development, administration, and oversight of Federal-aid projects are Title 23, United States Code (U.S.C.) and Code of Federal Regulations (CFR), in particular 23 CFR. The specific statutory basis for this agreement is Title 23 U.S.C., Section 106.

   It is recognized that the NHS (which includes the Interstate System) is of primary importance to the FHWA. Federal legislation relative to Interstate commerce and defense needs require that design standards, connectivity between States and consistency for the motoring public be maintained on the NHS. FHWA retains overall oversight responsibility for all aspects of Federal-aid programs in Pennsylvania.

3. Intent and Purpose

   The intent of this Agreement is to delegate FHWA's approval authority for preliminary engineering, construction contract administration, and right-of-way activities on or related to Federal-aid projects, consistent with enabling statutes and regulations, with specified exceptions for special interest project categories.

   PENNDOT will assume certain FHWA Title 23 oversight role and approval responsibilities on PO projects. This includes responsibility for ensuring that staff has appropriate training and knowledge to make sure that projects are developed and constructed in full conformance with Federal requirements and that necessary corrective action is taken when actions and approvals are found to be in non-compliance with applicable Federal requirements. FHWA is available for consultation in such matters or may unilaterally become involved in determining corrective action.

4. Other Public Agencies

   1. Eligible public agencies (city, county) or other State agencies may be permitted by PENNDOT to take project approval actions and administer Federal-aid design and construction projects. PENNDOT will assure local public agency knowledge and compliance with State and Federal requirements. The requesting public agency will be required to develop procedures which modify and/or supplement the procedures contained in this Agreement or otherwise published by PENNDOT. The public agency procedures must be approved by PENNDOT and FHWA and the agency must certify that it will operate in compliance with them.

   2. Projects Involving the Pennsylvania Turnpike Commission (PTC); project approval authority for PTC projects is delegated to PENNDOT for all type projects shown as PO in Table 1.

5. Standards, Specifications and Policies

   PENNDOT will comply with the provisions of Title 23 through the enforcement of Federal and State laws, regulations, standards, and directives. PENNDOT will develop Federal-aid projects in accordance with the standards and guides identified in 23 U.S.C. 109 (as well as other FHWA policies identified in the Federal Register) and/or PENNDOT standards or manuals approved by FHWA. PENNDOT manuals and guides are identified in Appendix A. Additions to Appendix A will occur as additional policies and guidance are developed, approved by FHWA, and implemented by PENNDOT.

   PENNDOT agrees that any revisions or additions to policy and procedure statements, design manuals, letters containing policy, rules and regulations, specifications and standards affecting policy on Federally funded projects will be submitted to the FHWA Division Office for approval and/or concurrence. Design standards for non-NHS projects do not require FHWA approval.

6. Penndot Assumption of Certain FHWA Responsibilities

   It is agreed that PENNDOT assumption of certain responsibilities does not preclude FHWA access to and review of Federal-aid projects at any time, and that it does not replace the provisions of Title 23, U.S.C. with respect to the basic structure of the Federal-aid program.

   Nothing in this Agreement shall affect or discharge any responsibility or obligation of the FHWA under any Federal law other than Title 23, U.S.C. Such other Federal requirements include, but are not limited to, the National Environmental Policy Act (NEPA), Section 4(f) of the Department of Transportation Act of 1966, Davis Bacon Act (40 U.S.C.), Disadvantaged Business Enterprise (DBE) (49 CFR 23), and the Uniform Relocation Assistance and Acquisition Policies Act of 1970 as Amended (i.e., Uniform Act) (49 CFR 24).

   In matters concerning questionable eligibility for Federal participation in the programming, development, and construction of Federal-aid projects, PENNDOT will consult with FHWA or FHWA may choose to become involved in determining eligibility.

7. Quality Management

   PENNDOT and FHWA are committed to Quality Management procedures and principles to ensure that highway projects adequately meet the existing and future traffic needs and conditions in a manner conducive to safety, environmental requirements, durability and economy of maintenance. Projects will be designed and constructed in accordance with standards best suited to accomplish this objective and to conform to the particular needs of each locality.

   Quality Management includes Quality Control (QC), Quality Assurance (QA), and an Independent Oversight Program (IOP).

   • Quality Control is the actions performed by PENNDOT (and/or consultants and contractors) in conformance with approved processes and procedures (design manuals, etc.).

   • Quality Assurance is the actions performed by PENNDOT District and Central office personnel to assure that QC procedures are followed and that the resultant product (plans, report, materials, etc.) or service will meet specified requirements.

   • The Independent Oversight Program is a new joint FHWA/PENNDOT program that will provide selective reviews of Federal-aid projects and PENNDOT processes to assess the effectiveness of Quality Management in producing quality products and services in compliance with Federal and State regulations and policy.

   The Independent Oversight Program, currently being developed, will include formal procedures for conducting risk assessments of the Federal-aid Program in Pennsylvania, annual meetings to select review areas, procedures for conducting reviews, developing reports and tracking resolution of findings and recommendations.

8. Project Categories and Agency Roles

   Table I identifies FO and PO categories of projects. A detailed list of program and project approvals related to these categories is provided in Appendix B.

   Table 1

   	FO	PO
   Interstate
   < $1 Million ( 1 )		X
   > $1 Million ( 1 )	X
   3R (Resurfacing, Restoration & Rehabilitation; Meets Full Design Criteria		X
   Interstate Completion (Appropriation 042)	X
   NHS (except Interstate)
   < $10 million (1)		X
   > $10 million (1) (2)	X
   Non-NHS		X

   1. The estimated cost of construction (regardless of funding source unless 100% State, and excluding construction engineering and right-of-way costs) based on the Design Field View estimate. If the project scope is revised following the Design Field View, FHWA will be consulted for any changes in oversight classification.

   2. PENNDOT or FHWA may request PENNDOT oversight designation based on lack of complexity or FHWA workload.

   General agency responsibilities pertaining to the categories of Federal-aid projects are described below. FHWA will review and approve NEPA and 4(f) actions for all PO and FO projects. FHWA will also take action on hardship and protective buying requests under the provisions of 23 CFR.

   1. Federal Oversight (FO)

      FHWA will retain approval authority for major actions on this category of projects.

   2. PENNDOT Oversight (PO) NHS

      PENNDOT operates under the authority of Pennsylvania Act 120 of 1970, and will administer Federal-aid PO projects on the NHS in compliance with all applicable Federal statutes, regulations, and Executive Orders. In addition, PENNDOT agrees to accomplish the policies and objectives contained in or issued pursuant to Title 23, U.S.C. PENNDOT will assume the responsibilities assigned to the FHWA under Title 23 for Federal-aid projects as permitted by the ISTEA and TEA-21.

   3. PENNDOT Oversight (PO) NON-NHS

      PO-Non-NHS projects are those not located on the National Highway System. Non-NHS projects may be funded with Surface Transportation Program (STP) funds and with certain other classes of funds where eligibility criteria are met, such as Federal Critical Bridge (FCB) funds, or Congestion Mitigation and Air Quality (CMAQ) funds. STP funds may not be used on roads functionally classified as local or rural minor collectors. Eligible costs are defined in 23 U.S.C. 133.

      Procedures for PO-Non-NHS projects are similar to those for PO-NHS projects in the sense that delegation removes FHWA from approval of design and construction activities and contract administration actions. Non-Title 23 requirements such as the NEPA and the Uniform Act (which pertains to Right-of-Way) apply to both NHS and Non-NHS Federal-aid projects, and FHWA is involved in project actions on all projects. Other Title 23 requirements (e.g., Metropolitan and Statewide Planning) apply to both NHS and Non-NHS projects. Also, Title 23 requirements pertaining to contracts (bid proposal content including Davis Bacon, and DBE) and procurement procedures (competitive bidding, Brooks Act) apply regardless of whether the project is on or off the NHS.

      The Governor (or his designee) will annually certify that the State will comply with all provisions of Title 23, U.S.C., ISTEA and TEA-21 Surface Transportation Programs. PENNDOT is responsible for ensuring compliance with applicable Federal and State requirements regarding design and construction of Non-NHS projects.

9. Implementation

   The pertinent PENNDOT policies and procedures for accomplishing the intent of the requirements of the FO, PO-NHS, and PO-Non-NHS projects are listed in the Appendices to this Agreement.

   This Agreement supersedes all previously executed Exemption Agreements between the FHWA and PENNDOT. This Agreement will take effect upon execution and will apply immediately to all new Federalaid projects and all existing Federal-aid projects under design. Federal-aid projects under construction will retain their current oversight classification through completion.

The parties agree that there shall be periodic reviews of this Agreement to reflect changes in Federal and State laws, regulations, and requirements. Additional projects (which may include the entire NHS, excluding the Interstate) may be exempted at a later date following the development and implementation, undertaken jointly by FHWA and PENNDOT, of Quality Management as cited in Section VII of this Agreement.

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