Section 1305 of the TEA-21 amends Section 106 of Title 23 - United States Code, Project Approval and Oversight, to provide revised provisions for oversight of Federal-aid highway projects. Section 1601 of the TEA-21 replaces existing Section 117 of Title 23, Certification Acceptance (CA) with the HIGH PRIORITY PROJECTS PROGRAM, thus eliminating CA.

Amended Section 106 provides considerable flexibility to individual States and FHWA division offices in reaching agreement on “responsibilities” for design, plans, specifications, estimates, right-of-way certification statements (part of PS&E), contract awards, and inspections/final acceptance of Federal-aid highway projects. It is important to realize that “responsibilities” refers only to the project actions noted in the preceding sentence. These are the same project actions for which States could assume responsibility under Section 106 prior to TEA-21. Similar to past implementation of Section 106, States cannot assume responsibility for other Federal actions required under laws outside of Title 23 (as an example, NEPA). Further, general Title 23 requirements that apply to all projects, such as metropolitan and statewide planning, procurement of services or contracts, disadvantaged business enterprises, wage rates, etc., continue to apply to projects where the State has assumed the responsibilities noted.

Projects on non-NHS Federal-aid highways, and eligible projects on public roads which are not Federal-aid highways - the State shall assume the responsibilities noted unless the State determines that such assumption is not appropriate. States requesting FHWA to be responsible for all, or a portion, of these projects are to provide FHWA information supporting their request for consideration during development of the required FHWA/State agreement.

Projects on the NHS, but not on the Interstate System - the State may assume the responsibilities noted unless the State or the FHWA determines that such assumption is not appropriate.

Projects on the Interstate System - there is no specific discussion in amended Section 106 of responsibilities that can be assumed by the States. However, amended Section 106(c)(4), which is a general requirement not relating to specific projects, indicates the FHWA may not assume any greater responsibility than the FHWA was permitted under Title 23 on September 30, 1997, except upon agreement between FHWA and the State.

It is FHWA’s position, considering the language in revised Section 106(c)(4), that all States continue to have the opportunity to assume the responsibilities noted for the same types of Interstate projects as were allowed under Section 106 prior to TEA-21, these being 1) all 3R projects and 2) new/reconstruction projects less than $1 million in cost.

Amended Section 106 also requires that FHWA and the State shall enter into an agreement documenting the types/classifications of projects for which the State will assume the responsibilities of FHWA under Title 23. This is a significant provision that requires specific documentation of the respective oversight responsibilities of both the State and FHWA for Federal-aid highway projects. Considering the elimination of Section 117, Certification Acceptance, and the expansion of oversight allowed under revised Section 106, it is strongly recommended that the division offices enter into this formal agreement with their State partners as soon as possible. Agreements may be modified, if agreed to by both parties, as the need arises. Divisions have full authority for executing the agreements on behalf of FHWA. Copies of agreements should be provided to Headquarters (HNG-1) for informational purposes.

For your information, Section 114 of Title 23, “Construction,” subsection (a), remains unchanged by TEA-21 and indicates that “ Except as provided in Section 117 of Title 23, Federal-aid highway construction projects are subject to the inspection and approval of the FHWA”. Since Certification Acceptance has been eliminated from Title 23 and Section 106 substantially revised, the reference in Section 114, to Section 117 (Certification Acceptance), should be disregarded.

Also, TEA-21 has not amended Section 109 of Title 23, “Standards,” regarding design standards for non-NHS or NHS projects.

The new oversight provisions of TEA-21 offer an excellent opportunity for States and divisions to work cooperatively to reevaluate appropriate oversight responsibilities for Federal-aid highway projects. Divisions are encouraged to take advantage of this opportunity to evaluate the specific oversight issues in their States, in addition to the many other critical division responsibilities, and work with the State to arrive at the most appropriate oversight agreement.

As under the ISTEA, divisions continue to have flexibility for determining the most appropriate oversight approach for projects the FHWA and State determine will have FHWA oversight responsibility. Also, amended Section 106 addresses specific oversight responsibilities and the formal assignment of these responsibilities to either the State or FHWA. Section 106, however, does not preclude FHWA from observing a Federal-aid highway project under State responsibility should the project contain unique features or if unusual circumstances arise.