23 U.S.C. § 169 (2024) — Title 23: HIGHWAYS / Chapter 1: FEDERAL-AID HIGHWAYS / Section 169: Development of programmatic mitigation plans
Development of programmatic mitigation plans
Status: in_force

(a) In General.—As part of the statewide or metropolitan transportation planning process, a State or metropolitan planning organization may develop 1 or more programmatic mitigation plans to address the potential environmental impacts of future transportation projects.

(b) Scope.—

(1) Scale.—A programmatic mitigation plan may be developed on a regional, ecosystem, watershed, or statewide scale.

(2) Resources.—The plan may encompass multiple environmental resources within a defined geographic area or may focus on a specific resource, such as aquatic resources, parkland, or wildlife habitat.

(3) Project impacts.—The plan may address impacts from all projects in a defined geographic area or may focus on a specific type of project.

(4) Consultation.—The scope of the plan shall be determined by the State or metropolitan planning organization, as appropriate, in consultation with the agency or agencies with jurisdiction over the resources being addressed in the mitigation plan.

(c) Contents.—A programmatic mitigation plan may include—

(1) an assessment of the condition of environmental resources in the geographic area covered by the plan, including an assessment of recent trends and any potential threats to those resources;

(2) an assessment of potential opportunities to improve the overall quality of environmental resources in the geographic area covered by the plan, through strategic mitigation for impacts of transportation projects;

(3) standard measures for mitigating certain types of impacts;

(4) parameters for determining appropriate mitigation for certain types of impacts, such as mitigation ratios or criteria for determining appropriate mitigation sites;

(5) adaptive management procedures, such as protocols that involve monitoring predicted impacts over time and adjusting mitigation measures in response to information gathered through the monitoring; and

(6) acknowledgment of specific statutory or regulatory requirements that must be satisfied when determining appropriate mitigation for certain types of resources.

(d) Process.—Before adopting a programmatic mitigation plan, a State or metropolitan planning organization shall—

(1) consult with each agency with jurisdiction over the environmental resources considered in the programmatic mitigation plan;

(2) make a draft of the plan available for review and comment by applicable environmental resource agencies and the public;

(3) consider any comments received from such agencies and the public on the draft plan; and

(4) address such comments in the final plan.

(e) Integration With Other Plans.—A programmatic mitigation plan may be integrated with other plans, including watershed plans, ecosystem plans, species recovery plans, growth management plans, and land use plans.

(f) Consideration in Project Development and Permitting.—If a programmatic mitigation plan has been developed pursuant to this section, any Federal agency responsible for environmental reviews, permits, or approvals for a transportation project shall give substantial weight to the recommendations in a programmatic mitigation plan when carrying out the responsibilities under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) or other Federal environmental law.

(g) Preservation of Existing Authorities.—Nothing in this section limits the use of programmatic approaches to reviews under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).

(Added Pub. L. 112–141, div. A, title I, §1311(a), July 6, 2012, 126 Stat. 543; amended Pub. L. 114–94, div. A, title I, §1306, Dec. 4, 2015, 129 Stat. 1389.)

Editorial Notes

References in Text

The National Environmental Policy Act of 1969, referred to in subsecs. (f) and (g), is Pub. L. 91–190, Jan. 1, 1970, 83 Stat. 852, which is classified generally to chapter 55 (§4321 et seq.) of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 4321 of Title 42 and Tables.

Amendments

2015—Subsec. (f). Pub. L. 114–94 substituted "shall give substantial weight to" for "may use" and inserted "or other Federal environmental law" before period at end.

Statutory Notes and Related Subsidiaries

Effective Date of 2015 Amendment

Amendment by Pub. L. 114–94 effective Oct. 1, 2015, see section 1003 of Pub. L. 114–94, set out as a note under section 5313 of Title 5, Government Organization and Employees.

Effective Date

Section effective Oct. 1, 2012, see section 3(a) of Pub. L. 112–141, set out as an Effective and Termination Dates of 2012 Amendment note under section 101 of this title.
23 U.S.C. § 109 (2024) — Title 23: HIGHWAYS / Chapter 1: FEDERAL-AID HIGHWAYS / Section 109: Standards
Standards
Status: in_force

(a) In General.—The Secretary shall ensure that the plans and specifications for each proposed highway project under this chapter provide for a facility that will—

(1) adequately serve the existing and planned future traffic of the highway in a manner that is conducive to safety, durability, and economy of maintenance; and

(2) be designed and constructed in accordance with criteria best suited to accomplish the objectives described in paragraph (1) and to conform to the particular needs of each locality.

(b) The geometric and construction standards to be adopted for the Interstate System shall be those approved by the Secretary in cooperation with the State transportation departments. Such standards, as applied to each actual construction project, shall be adequate to enable such project to accommodate the types and volumes of traffic anticipated for such project for the twenty-year period commencing on the date of approval by the Secretary, under section 106 of this title, of the plans, specifications, and estimates for actual construction of such project. Such standards shall in all cases provide for at least four lanes of traffic. The right-of-way width of the Interstate System shall be adequate to permit construction of projects on the Interstate System to such standards. The Secretary shall apply such standards uniformly throughout all the States.

(c) Design Criteria for National Highway System.—

(1) In general.—A design for new construction, reconstruction, resurfacing (except for maintenance resurfacing), restoration, or rehabilitation of a highway on the National Highway System (other than a highway also on the Interstate System) shall consider, in addition to the criteria described in subsection (a)—

(A) the constructed and natural environment of the area;

(B) the environmental, scenic, aesthetic, historic, community, and preservation impacts of the activity;

(C) cost savings by utilizing flexibility that exists in current design guidance and regulations; and

(D) access for other modes of transportation.

(2) Development of criteria.—The Secretary, in cooperation with State transportation departments, may develop criteria to implement paragraph (1). In developing criteria under this paragraph, the Secretary shall consider—

(A) the results of the committee process of the American Association of State Highway and Transportation Officials as used in adopting and publishing "A Policy on Geometric Design of Highways and Streets", including comments submitted by interested parties as part of such process;

(B) the publication entitled "Flexibility in Highway Design" of the Federal Highway Administration;

(C) "Eight Characteristics of Process to Yield Excellence and the Seven Qualities of Excellence in Transportation Design" developed by the conference held during 1998 entitled "Thinking Beyond the Pavement National Workshop on Integrating Highway Development with Communities and the Environment while Maintaining Safety and Performance";

(D) the publication entitled "Highway Safety Manual" of the American Association of State Highway and Transportation Officials;

(E) the publication entitled "Urban Street Design Guide" of the National Association of City Transportation Officials;

(F) the publication of the Federal Highway Administration entitled "Wildlife Crossing Structure Handbook: Design and Evaluation in North America" and dated March 2011; and

(G) any other material that the Secretary determines to be appropriate.

(d) Manual on Uniform Traffic Control Devices.—

(1) In general.—On any highway project in which Federal funds hereafter participate, or on any such project constructed since December 20, 1944, the location, form and character of informational, regulatory and warning signs, curb and pavement or other markings, and traffic signals installed or placed by any public authority or other agency, shall be subject to the approval of the State transportation department with the concurrence of the Secretary, who is directed to concur only in such installations as will promote the safety, inclusion, and mobility of all users and efficient utilization of the highways.

(2) Updates.—Not later than 18 months after the date of enactment of the Surface Transportation Reauthorization Act of 2021 and not less frequently than every 4 years thereafter, the Secretary shall update the Manual on Uniform Traffic Control Devices.

(e) Installation of Safety Devices.—

(1) Highway and railroad grade crossings and drawbridges.—No funds shall be approved for expenditure on any Federal-aid highway, or highway affected under chapter 2 of this title, unless proper safety protective devices complying with safety standards determined by the Secretary at that time as being adequate shall be installed or be in operation at any highway and railroad grade crossing or drawbridge on that portion of the highway with respect to which such expenditures are to be made.

(2) Temporary traffic control devices.—No funds shall be approved for expenditure on any Federal-aid highway, or highway affected under chapter 2, unless proper temporary traffic control devices to improve safety in work zones will be installed and maintained during construction, utility, and maintenance operations on that portion of the highway with respect to which such expenditures are to be made. Installation and maintenance of the devices shall be in accordance with the Manual on Uniform Traffic Control Devices.

(f) The Secretary shall not, as a condition precedent to his approval under section 106 of this title, require any State to acquire title to, or control of, any marginal land along the proposed highway in addition to that reasonably necessary for road surfaces, median strips, bikeways, pedestrian walkways, gutters, ditches, and side slopes, and of sufficient width to provide service roads for adjacent property to permit safe access at controlled locations in order to expedite traffic, promote safety, and minimize roadside parking.

(g) Not later than January 30, 1971, the Secretary shall issue guidelines for minimizing possible soil erosion from highway construction. Such guidelines shall apply to all proposed projects with respect to which plans, specifications, and estimates are approved by the Secretary after the issuance of such guidelines.

(h) Not later than July 1, 1972, the Secretary, after consultation with appropriate Federal and State officials, shall submit to Congress, and not later than 90 days after such submission, promulgate guidelines designed to assure that possible adverse economic, social, and environmental effects relating to any proposed project on any Federal-aid system have been fully considered in developing such project, and that the final decisions on the project are made in the best overall public interest, taking into consideration the need for fast, safe and efficient transportation, public services, and the costs of eliminating or minimizing such adverse effects and the following:

(1) air, noise, and water pollution;

(2) destruction or disruption of man-made and natural resources, aesthetic values, community cohesion and the availability of public facilities and services;

(3) adverse employment effects, and tax and property value losses;

(4) injurious displacement of people, businesses and farms; and

(5) disruption of desirable community and regional growth.

Such guidelines shall apply to all proposed projects with respect to which plans, specifications, and estimates are approved by the Secretary after the issuance of such guidelines.

(i) The Secretary, after consultation with appropriate Federal, State, and local officials, shall develop and promulgate standards for highway noise levels compatible with different land uses and after July 1, 1972, shall not approve plans and specifications for any proposed project on any Federal-aid system for which location approval has not yet been secured unless he determines that such plans and specifications include adequate measures to implement the appropriate noise level standards. The Secretary, after consultation with the Administrator of the Environmental Protection Agency and appropriate Federal, State, and local officials, may promulgate standards for the control of highway noise levels for highways on any Federal-aid system for which project approval has been secured prior to July 1, 1972. The Secretary may approve any project on a Federal-aid system to which noise-level standards are made applicable under the preceding sentence for the purpose of carrying out such standards. Such project may include, but is not limited to, the acquisition of additional rights-of-way, the construction of physical barriers, and landscaping. Sums apportioned for the Federal-aid system on which such project will be located shall be available to finance the Federal share of such project. Such project shall be deemed a highway project for all purposes of this title.

(j) The Secretary, after consultation with the Administrator of the Environmental Protection Agency, shall develop and promulgate guidelines to assure that highways constructed pursuant to this title are consistent with any approved plan for—

(1) the implementation of a national ambient air quality standard for each pollutant for which an area is designated as a nonattainment area under section 107(d) of the Clean Air Act (42 U.S.C. 7407(d)); or

(2) the maintenance of a national ambient air quality standard in an area that was designated as a nonattainment area but that was later redesignated by the Administrator as an attainment area for the standard and that is required to develop a maintenance plan under section 175A of the Clean Air Act (42 U.S.C. 7505a).

(k) The Secretary shall not approve any project involving approaches to a bridge under this title, if such project and bridge will significantly affect the traffic volume and the highway system of a contiguous State without first taking into full consideration the views of that State.

(l)(1) In determining whether any right-of-way on any Federal-aid highway should be used for accommodating any utility facility, the Secretary shall—

(A) first ascertain the effect such use will have on highway and traffic safety, since in no case shall any use be authorized or otherwise permitted, under this or any other provision of law, which would adversely affect safety;

(B) evaluate the direct and indirect environmental and economic effects of any loss of productive agricultural land or any impairment of the productivity of any agricultural land which would result from the disapproval of the use of such right-of-way for the accommodation of such utility facility; and

(C) consider such environmental and economic effects together with any interference with or impairment of the use of the highway in such right-of-way which would result from the use of such right-of-way for the accommodation of such utility facility.

(2) For the purpose of this subsection—

(A) the term "utility facility" means any privately, publicly, or cooperatively owned line, facility, or system for producing, transmitting, or distributing communications, power, electricity, light, heat, gas, oil, crude products, water, steam, waste, storm water not connected with highway drainage, or any other similar commodity, including any fire or police signal system or street lighting system, which directly or indirectly serves the public; and

(B) the term "right-of-way" means any real property, or interest therein, acquired, dedicated, or reserved for the construction, operation, and maintenance of a highway.

(m) Protection of Nonmotorized Transportation Traffic.—The Secretary shall not approve any project or take any regulatory action under this title that will result in the severance of an existing major route or have significant adverse impact on the safety for nonmotorized transportation traffic and light motorcycles, unless such project or regulatory action provides for a reasonable alternate route or such a route exists.

(n) It is the intent of Congress that any project for resurfacing, restoring, or rehabilitating any highway, other than a highway access to which is fully controlled, in which Federal funds participate shall be constructed in accordance with standards to preserve and extend the service life of highways and enhance highway safety.

(o) Compliance With State Laws for Non-NHS Projects.—

(A) 1 In general.—Projects (other than highway projects on the National Highway System) shall be designed, constructed, operated, and maintained in accordance with State laws, regulations, directives, safety standards, design standards, and construction standards.

(B) 1 Local jurisdictions.—Notwithstanding subparagraph (A), a local jurisdiction may use a roadway design guide recognized by the Federal Highway Administration 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 (other than a highway on the National Highway System) for which the local jurisdiction is the project sponsor, provided that the design complies with all other applicable Federal laws.

(p) Scenic and Historic Values.—Notwithstanding subsections (b) and (c), the Secretary may approve a project for the National Highway System if the project is designed to—

(1) allow for the preservation of environmental, scenic, or historic values;

(2) ensure safe use of the facility; and

(3) comply with subsection (a).

(q) Phase Construction.—Safety considerations for a project under this title may be met by phase construction consistent with the operative safety management system established in accordance with a statewide transportation improvement program approved by the Secretary.

(r) Pavement Markings.—The Secretary shall not approve any pavement markings project that includes the use of glass beads containing more than 200 parts per million of arsenic or lead, as determined in accordance with Environmental Protection Agency testing methods 3052, 6010B, or 6010C.

(s) Electric Vehicle Charging Stations.—

(1) Standards.—Electric vehicle charging infrastructure installed using funds provided under this title shall provide, at a minimum—

(A) non-proprietary charging connectors that meet applicable industry safety standards; and

(B) open access to payment methods that are available to all members of the public to ensure secure, convenient, and equal access to the electric vehicle charging infrastructure that shall not be limited by membership to a particular payment provider.

(2) Treatment of projects.—Notwithstanding any other provision of law, a project to install electric vehicle charging infrastructure using funds provided under this title shall be treated as if the project is located on a Federal-aid highway.

(Pub. L. 85–767, Aug. 27, 1958, 72 Stat. 894; Pub. L. 88–157, §4, Oct. 24, 1963, 77 Stat. 277; Pub. L. 89–574, §§5(a), 14, Sept. 13, 1966, 80 Stat. 767, 771; Pub. L. 91–605, title I, §136(a), (b), Dec. 31, 1970, 84 Stat. 1734; Pub. L. 93–87, title I, §§114, 152(2), 156, Aug. 13, 1973, 87 Stat. 257, 276, 277; Pub. L. 95–599, title I, §§113, 116(d), 141(f), (g), Nov. 6, 1978, 92 Stat. 2696, 2699, 2711; Pub. L. 96–106, §3, Nov. 9, 1979, 93 Stat. 797; Pub. L. 97–424, title I, §110(a), Jan. 6, 1983, 96 Stat. 2105; Pub. L. 102–240, title I, §1016(c)–(f)(1), Dec. 18, 1991, 105 Stat. 1946; Pub. L. 104–59, title III, §§304, 305(a), Nov. 28, 1995, 109 Stat. 579, 580; Pub. L. 105–178, title I, §§1202(c), 1212(a)(2)(A), 1306, June 9, 1998, 112 Stat. 169, 193, 229; Pub. L. 109–59, title I, §1110(a), (c), title VI, §6008, Aug. 10, 2005, 119 Stat. 1170, 1171, 1874; Pub. L. 112–141, div. A, title I, §§1504, 1519(c)(3), formerly §1519(c)(4), July 6, 2012, 126 Stat. 564, 575, renumbered §1519(c)(3), Pub. L. 114–94, div. A, title I, §1446(d)(5)(B), Dec. 4, 2015, 129 Stat. 1438; Pub. L. 114–94, div. A, title I, §1404(a), Dec. 4, 2015, 129 Stat. 1409; Pub. L. 117–58, div. A, title I, §§11123(d), 11129, Nov. 15, 2021, 135 Stat. 506, 508.)

Editorial Notes

References in Text

The date of enactment of the Surface Transportation Reauthorization Act of 2021, referred to in subsec. (d)(2), is the date of enactment of div. A of Pub. L. 117–58, which was approved Nov. 15, 2021.

Amendments

2021—Subsec. (c)(2)(F), (G). Pub. L. 117–58, §11123(d), added subpar. (F) and redesignated former subpar. (F) as (G).

Subsec. (d). Pub. L. 117–58, §11129(1), inserted subsec. heading, designated existing provisions as par. (1) and inserted par. heading, substituted "promote the safety, inclusion, and mobility of all users" for "promote the safe", and added par. (2).

Subsec. (o). Pub. L. 117–58, §11129(2), designated existing provisions as par. (A), inserted heading, and added par. (B).

Subsec. (s). Pub. L. 117–58, §11129(3), added subsec. (s).

2015—Subsec. (c)(1). Pub. L. 114–94, §1404(a)(1)(A)(i), substituted "shall consider" for "may take into account" in introductory provisions.

Subsec. (c)(1)(C), (D). Pub. L. 114–94, §1404(a)(1)(A)(ii)–(iv), added subpar. (C) and redesignated former subpar. (C) as (D).

Subsec. (c)(2)(D) to (F). Pub. L. 114–94, §1404(a)(1)(B), added subpars. (D) and (E) and redesignated former subpar. (D) as (F).

Subsec. (f). Pub. L. 114–94, §1404(a)(2), inserted "pedestrian walkways," after "bikeways,".

Subsec. (q). Pub. L. 114–94, §1446(d)(5)(B), amended Pub. L. 112–141, §1519(c). See 2012 Amendment note below.

2012—Subsec. (q). Pub. L. 112–141, §1519(c)(3), formerly §1519(c)(4), as renumbered by Pub. L. 114–94, §1446(d)(5)(B), struck out "in accordance with section 303 or" after "system established".

Subsec. (r). Pub. L. 112–141, §1504, added subsec. (r).

2005—Subsec. (c)(2). Pub. L. 109–59, §6008, inserted dash after "Secretary shall consider" and subpar. (A) designation before "the results", substituted semicolon for period, and added subpars. (B) to (D).

Subsec. (e). Pub. L. 109–59, §1110(a), inserted subsec. heading, designated existing provisions as par. (1), inserted par. heading, and added par. (2).

Subsec. (g). Pub. L. 109–59, §1110(c), substituted "Not later than January 30, 1971, the Secretary shall issue" for "The Secretary shall issue within 30 days after the day of enactment of the Federal-Aid Highway Act of 1970".

1998—Subsecs. (b), (c)(2). Pub. L. 105–178, §1212(a)(2)(A)(ii), substituted "State transportation departments" for "State highway departments".

Subsec. (d). Pub. L. 105–178, §1212(a)(2)(A)(i), substituted "State transportation department" for "State highway department".

Subsec. (m). Pub. L. 105–178, §1306(a), redesignated subsec. (n) as (m) and struck out former subsec. (m) which read as follows: "The Secretary shall issue guidelines describing the criteria applicable to the Interstate System in order to insure that the condition of these routes is maintained at the level required by the purposes for which they were designed. The initial guidelines shall be issued no later than October 1, 1979."

Subsec. (n). Pub. L. 105–178, §1306(a)(2), redesignated subsec. (o) as (n). Former subsec. (n) redesignated (m).

Pub. L. 105–178, §1202(c), inserted heading and amended text of subsec. (n) generally. Prior to amendment, text read as follows: "The Secretary shall not approve any project under this title that will result in the severance or destruction of an existing major route for nonmotorized transportation traffic and light motorcycles, unless such project provides a reasonably alternate route or such a route exists."

Subsecs. (o) to (q). Pub. L. 105–178, §1306(a)(2), (b), added subsec. (q) and redesignated former subsecs. (p) and (q) as (o) and (p), respectively. Former subsec. (o) redesignated (n).

1995—Subsec. (a). Pub. L. 104–59, §304(1), added subsec. (a) and struck out former subsec. (a) which read as follows: "The Secretary shall not approve plans and specifications for proposed highway projects under this chapter if they fail to provide for a facility (1) that will adequately meet the existing and probable future traffic needs and conditions in a manner conducive to safety, durability, and economy of maintenance; (2) that will be designed and constructed in accordance with standards best suited to accomplish the foregoing objectives and to conform to the particular needs of each locality."

Subsec. (c). Pub. L. 104–59, §304(2), added subsec. (c) and struck out former subsec. (c) which read as follows:

"(c) Design and Construction Standards for NHS.—Design and construction standards to be adopted for new construction on the National Highway System, for reconstruction on the National Highway System, and for resurfacing, restoring, and rehabilitating multilane limited access highways on the National Highway System shall be those approved by the Secretary in cooperation with the State highway departments. All eligible work for such projects shall meet or exceed such standards."

Subsec. (j). Pub. L. 104–59, §305(a), substituted "plan for—" and pars. (1) and (2) for "plan for the implementation of any ambient air quality standard for any air quality control region designated pursuant to the Clean Air Act, as amended."

Subsec. (q). Pub. L. 104–59, §304(3), added subsec. (q) and struck out former subsec. (q) which read as follows:

"(q) Historic and Scenic Values.—If a proposed project under sections 103(e)(4), 133, or 144 involves a historic facility or is located in an area of historic or scenic value, the Secretary may approve such project notwithstanding the requirements of subsections (a) and (b) of this section and section 133(c) if such project is designed to standards that allow for the preservation of such historic or scenic value and such project is designed with mitigation measures to allow preservation of such value and ensure safe use of the facility."

1991—Subsec. (a). Pub. L. 102–240, §1016(f)(1)(A), substituted "highway projects under this chapter" for "projects on any Federal-aid system".

Subsec. (c). Pub. L. 102–240, §1016(c), amended subsec. (c) generally. Prior to amendment, subsec. (c) read as follows: "Projects on the Federal-aid secondary system in which Federal funds participate shall be constructed according to specifications that will provide all-weather service and permit maintenance at a reasonable cost."

Subsec. (l)(1). Pub. L. 102–240, §1016(f)(1)(B), substituted "highway" for "system" in introductory provisions.

Subsecs. (p), (q). Pub. L. 102–240, §1016(d), (e), added subsecs. (p) and (q).

1983—Subsec. (o). Pub. L. 97–424 added subsec. (o).

1979—Subsec. (l)(1)(A). Pub. L. 96–106 struck out "any aspect of" after "adversely affect".

1978—Subsec. (f). Pub. L. 95–599, §141(f), inserted "bikeways" after "surfaces, median strips,".

Subsec. (l). Pub. L. 95–599, §113, added subsec. (l).

Subsec. (m). Pub. L. 95–599, §116(d), added subsec. (m).

Subsec. (n). Pub. L. 95–599, §141(g), added subsec. (n).

1973—Subsec. (g). Pub. L. 93–87, §152(2), substituted "Act" for "Rct", thus correcting the popular name to read "Federal-Aid Highway Act of 1970".

Subsec. (i). Pub. L. 93–87, §114, authorized promulgation of noise-level standards for highways on any Federal-aid system for which project approval has been secured prior to July 1, 1972, and approval of any project on a Federal-aid system to which noise-level standards are made applicable, described the range of the projects, made money available for financing Federal share of the project, and deemed such project a highway project for all purposes of this title.

Subsec. (k). Pub. L. 93–87, §156, added subsec. (k).

1970—Subsec. (g). Pub. L. 91–605, §136(a), substituted provisions ordering the Secretary to issue within 30 days after Dec. 31, 1970, guidelines, which will apply to all proposed projects approved by the Secretary after their issuance, for minimizing soil erosion from highway construction for provisions authorizing the Secretary to consult with the Secretary of Agriculture respecting guidelines for minimizing soil erosion from highway construction and report such guidelines to Congress not later than July 1, 1967.

Subsecs. (h) to (j). Pub. L. 91–605, §136(b), added subsecs. (h) to (j).

1966—Subsec. (b). Pub. L. 89–574, §5(a), required that in all cases the standards provide for at least four lanes of traffic.

Subsec. (g). Pub. L. 89–574, §14, added subsec. (g).

1963—Subsec. (b). Pub. L. 88–157 substituted "Such standards, as applied to each actual construction project, shall be adequate to enable such project to accommodate the types and volumes of traffic anticipated for such project for the twenty-year period commencing on the date of approval by the Secretary, under section 106 of this title, of the plans, specifications, and estimates for actual construction of such project" for "Such standards shall be adequate to accommodate the types and volumes of traffic forecast for the year 1975", struck out "up" before "to such standards" and inserted "all" in phrase "throughout all the States".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–58 effective Oct. 1, 2021, see section 10003 of Pub. L. 117–58, set out as a note under section 101 of this title.

Effective Date of 2015 Amendment

Except as otherwise provided, amendment by Pub. L. 114–94 effective Oct. 1, 2015, see section 1003 of Pub. L. 114–94, set out as a note under section 5313 of Title 5, Government Organization and Employees.

Pub. L. 114–94, div. A, title I, §1446(d), Dec. 4, 2015, 129 Stat. 1438, provided that the amendment made by section 1446(d)(5)(B) is effective as of July 6, 2012, and as if included in Pub. L. 112–141 as enacted.

Effective Date of 2012 Amendment

Amendment by Pub. L. 112–141 effective Oct. 1, 2012, see section 3(a) of Pub. L. 112–141, set out as an Effective and Termination Dates of 2012 Amendment note under section 101 of this title.

Effective Date of 1991 Amendment

Amendment by Pub. L. 102–240 effective Dec. 18, 1991, and applicable to funds authorized to be appropriated or made available after Sept. 30, 1991, and, with certain exceptions, not applicable to funds appropriated or made available on or before Sept. 30, 1991, see section 1100 of Pub. L. 102–240, set out as a note under section 104 of this title.

Updates to Manual on Uniform Traffic Control Devices

Pub. L. 117–58, div. A, title I, §11135, Nov. 15, 2021, 135 Stat. 516, provided that: "In carrying out the first update to the Manual on Uniform Traffic Control Devices under section 109(d)(2) of title 23, United States Code, to the greatest extent practicable, the Secretary [of Transportation] shall include updates necessary to provide for—

"(1) the protection of vulnerable road users (as defined in section 148(a) of title 23, United States Code);

"(2) supporting the safe testing of automated vehicle technology and any preparation necessary for the safe integration of automated vehicles onto public streets;

"(3) appropriate use of variable message signs to enhance public safety;

"(4) the minimum retroreflectivity of traffic control devices and pavement markings; and

"(5) any additional recommendations made by the National Committee on Uniform Traffic Control Devices that have not been incorporated into the Manual on Uniform Traffic Control Devices."

Roadside Highway Safety Hardware

Pub. L. 117–58, div. A, title I, §11517, Nov. 15, 2021, 135 Stat. 601, provided that:

"(a) In General.—To the maximum extent practicable, the Secretary [of Transportation] shall develop a process for third party verification of full-scale crash testing results from crash test labs, including a method for formally verifying the testing outcomes and providing for an independent pass/fail determination. In establishing such a process, the Secretary shall seek to ensure the independence of crash test labs by ensuring that those labs have a clear separation between device development and testing in cases in which lab employees test devices that were developed within the parent organization of the employee.

"(b) Continued Issuance of Eligibility Letters.—Until the implementation of the process described in subsection (a) is complete, the Secretary may, and is encouraged to, ensure that the Administrator of the Federal Highway Administration continues to issue Federal-aid reimbursement eligibility letters for roadside safety hardware as a service to States.

"(c) Report to Congress.—

"(1) In general.—If the Secretary seeks to discontinue issuing the letters described in subsection (b), the Secretary shall submit to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives a report at least 1 year before discontinuing the letters.

"(2) Inclusions.—The report described in paragraph (1) shall include a summary of the third-party verification process described in subsection (a) that will replace the Federal Highway Administration issuance of eligibility letters and any other relevant information that the Secretary deems necessary."

Stormwater Best Management Practices Reports

Pub. L. 117–58, div. A, title I, §11521, Nov. 15, 2021, 135 Stat. 603, provided that:

"(a) Definitions.—In this section:

"(1) Administrator.—The term 'Administrator' means the Administrator of the Federal Highway Administration.

"(2) Best management practices report.—The term 'best management practices report' means—

"(A) the 2014 report sponsored by the Administrator entitled 'Determining the State of the Practice in Data Collection and Performance Measurement of Stormwater Best Management Practices'; and

"(B) the 1997 report sponsored by the Administrator entitled 'Stormwater Best Management Practices in an Ultra-Urban Setting: Selection and Monitoring'.

"(b) Reissuance.—Not later than 1 year after the date of enactment of this Act [Nov. 15, 2021], the Administrator shall update and reissue each best management practices report to reflect new information and advancements in stormwater management.

"(c) Updates.—Not less frequently than once every 5 years after the date on which the Administrator reissues a best management practices report described in subsection (b), the Administrator shall update and reissue the best management practices report until the earlier of the date on which—

"(1) the best management practices report is withdrawn; or

"(2) the contents of the best management practices report are incorporated (including by reference) into applicable regulations of the Administrator."

Retroactive Application of Adjustment to Criteria for Categorical Exclusion for Projects of Limited Federal Assistance

Pub. L. 114–94, div. A, title I, §1314(b), Dec. 4, 2015, 129 Stat. 1403, provided that: "The first adjustment made pursuant to the amendments made by subsection (a) [amending section 1317 of Pub. L. 112–141, set out under this section] shall—

"(1) be carried out not later than 60 days after the date of enactment of this Act [Dec. 4, 2015]; and

"(2) reflect the increase in the Consumer Price Index since July 1, 2012."

Categorical Exclusion Determinations

Pub. L. 114–94, div. A, title I, §1315(b), Dec. 4, 2015, 129 Stat. 1403, provided that: "Not later than 30 days after the date of enactment of this Act [Dec. 4, 2015], the Secretary [of Transportation] shall revise section 771.117(g) of title 23, Code of Federal Regulations, to allow a programmatic agreement under this section [see section 1318(e) of Pub. L. 112–141, set out under this section] to include responsibility for making categorical exclusion determinations—

"(1) for actions described in subsections (c) and (d) of section 771.117 of title 23, Code of Federal Regulations; and

"(2) that meet the criteria for a categorical exclusion under section 1508.4 of title 40, Code of Federal Regulations (as in effect on the date of enactment of this Act), and are identified in the programmatic agreement."

Roadway Design Standard Flexibility

Pub. L. 114–94, div. A, title I, §1404(b), Dec. 4, 2015, 129 Stat. 1409, provided that: "Notwithstanding section 109(o) of title 23, United States Code, a State may allow a local jurisdiction to use a roadway design publication that is different from the roadway design publication used by the State in which the local jurisdiction is located for the design of a project on a roadway under the ownership of the local jurisdiction (other than a highway on the Interstate System) if—

"(1) the local jurisdiction is a direct recipient of Federal funds for the project;

"(2) the roadway design publication—

"(A) is recognized by the Federal Highway Administration; and

"(B) is adopted by the local jurisdiction; and

"(3) the design complies with all other applicable Federal laws."

Emergency Exemptions

Pub. L. 114–94, div. A, title I, §1432, Dec. 4, 2015, 129 Stat. 1429, provided that:

"(a) In General.—Any road, highway, railway, bridge, or transit facility that is damaged by an emergency that is declared by the Governor of the State, with the concurrence of the Secretary of Homeland Security, or declared as an emergency by the President pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5121 et seq.), and that is in operation or under construction on the date on which the emergency occurs may be reconstructed in the same location with the same capacity, dimensions, and design as before the emergency subject to the exemptions and expedited procedures under subsection (b).

"(b) Exemptions and Expedited Procedures.—

"(1) Alternative arrangements.—Alternative arrangements for an emergency under section 1506.11 of title 40, Code of Federal Regulations (as in effect on the date of enactment of this Act [Dec. 4, 2015]) shall apply to reconstruction under subsection (a), and the reconstruction shall be considered necessary to control the immediate impacts of the emergency.

"(2) Stormwater discharge permits.—A general permit for stormwater discharges from construction activities, if available, issued by the Administrator of the Environmental Protection Agency or the director of a State program under section 402(p) of the Federal Water Pollution Control Act (33 U.S.C. 1342(p)), as applicable, shall apply to reconstruction under subsection (a), on submission of a notice of intent to be subject to the permit.

"(3) Emergency procedures.—The emergency procedures for issuing permits in accordance with section 325.2(e)(4) of title 33, Code of Federal Regulations (as in effect on the date of enactment of this Act) shall apply to reconstruction under subsection (a), and the reconstruction shall be considered an emergency under that regulation.

"(4) National historic preservation act exemption.—Reconstruction under subsection (a) is eligible for an exemption from the requirements of the National Historic Preservation Act of 1966 [Pub. L. 89–665, see Tables for classification] pursuant to part 78 of title 36, Code of Federal Regulations (as in effect on the date of enactment of this Act).

"(5) Endangered species act exemption.—An exemption from the requirements of the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.) pursuant to section 7(p) of that Act (16 U.S.C. 1536(p)) shall apply to reconstruction under subsection (a) and, if the President makes the determination required under section 7(p) of that Act, the determinations required under subsections (g) and (h) of that section shall be deemed to be made.

"(6) Expedited consultation under endangered species act.—Expedited consultation pursuant to section 402.05 of title 50, Code of Federal Regulations (as in effect on the date of enactment of this Act) shall apply to reconstruction under subsection (a).

"(7) Other exemptions.—Any reconstruction that is exempt under paragraph (5) shall also be exempt from requirements under—

"(A) the Migratory Bird Treaty Act (16 U.S.C. 703 et seq.);

"(B) the Wild and Scenic Rivers Act (16 U.S.C. 1271 et seq.); and

"(C) the Fish and Wildlife Coordination Act (16 U.S.C. 661 et seq.)."

Safety for Users

Pub. L. 114–94, div. A, title I, §1442, Dec. 4, 2015, 129 Stat. 1436, provided that:

"(a) In General.—The Secretary [of Transportation] shall encourage each State and metropolitan planning organization to adopt standards for the design of Federal surface transportation projects that provide for the safe and adequate accommodation (as determined by the State) of all users of the surface transportation network, including motorized and nonmotorized users, in all phases of project planning, development, and operation.

"(b) Report.—Not later than 2 years after the date of enactment of this Act [Dec. 4, 2015], the Secretary shall make available to the public a report cataloging examples of State law or State transportation policy that provide for the safe and adequate accommodation of all users of the surface transportation network, in all phases of project planning, development, and operation.

"(c) Best Practices.—Based on the report under subsection (b), the Secretary shall identify and disseminate examples of best practices where States have adopted measures that have successfully provided for the safe and adequate accommodation of all users of the surface transportation network in all phases of project planning, development, and operation."

Categorical Exclusions in Emergencies

Pub. L. 112–141, div. A, title I, §1315, July 6, 2012, 126 Stat. 549, provided that:

"(a) In General.—Not later than 30 days after the date of enactment of this Act [see section 3(a), (b) of Pub. L. 112–141, set out as Effective and Termination Dates of 2012 Amendment notes under section 101 of this title], for the repair or reconstruction of any road, highway, or bridge that is in operation or under construction when damaged by an emergency declared by the Governor of the State and concurred in by the Secretary [of Transportation], or for a disaster or emergency declared by the President pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5121 et seq.), the Secretary shall publish a notice of proposed rulemaking to treat any such repair or reconstruction activity as a class of action categorically excluded from the requirements relating to environmental assessments or environmental impact statements under section 1508.4 of title 40, Code of Federal Regulations, and section 771.117 of title 23, Code of Federal Regulations (as in effect on the date of enactment of this Act) if such repair or reconstruction activity is—

"(1) in the same location with the same capacity, dimensions, and design as the original road, highway, or bridge as before the declaration described in this section; and

"(2) commenced within a 2-year period beginning on the date of a declaration described in this section.

"(b) Rulemaking.—

"(1) In general.—The Secretary [of Transportation] shall ensure that the rulemaking helps to conserve Federal resources and protects public safety and health by providing for periodic evaluations to determine if reasonable alternatives exist to roads, highways, or bridges that repeatedly require repair and reconstruction activities.

"(2) Reasonable alternatives.—The reasonable alternatives described in paragraph (1) include actions that could reduce the need for Federal funds to be expended on such repair and reconstruction activities, better protect public safety and health and the environment, and meet transportation needs as described in relevant and applicable Federal, State, local and tribal plans."

Categorical Exclusions for Projects Within the Right-of-way

Pub. L. 112–141, div. A, title I, §1316, July 6, 2012, 126 Stat. 549, provided that:

"(a) In General.—The Secretary [of Transportation] shall—

"(1) not later than 180 days after the date of enactment of this Act [see section 3(a), (b) of Pub. L. 112–141, set out as Effective and Termination Dates of 2012 Amendment notes under section 101 of this title], designate any project (as defined in section 101(a) of title 23, United States Code) within an existing operational right-of-way as an action categorically excluded from the requirements relating to environmental assessments or environmental impact statements under section 1508.4 of title 40, Code of Federal Regulations, and section 771.117(c) of title 23, Code of Federal Regulations; and

"(2) not later than 150 days after the date of enactment of this Act, promulgate regulations to carry out paragraph (1).

"(b) Definition of an Operational Right-of-way.—In this section, the term 'operational right-of-way' means all real property interests acquired for the construction, operation, or mitigation of a project (as defined in section 101(a) of title 23, United States Code), including the locations of the roadway, bridges, interchanges, culverts, drainage, clear zone, traffic control signage, landscaping, and any rest areas with direct access to a controlled access highway."

Categorical Exclusion for Projects of Limited Federal Assistance

Pub. L. 112–141, div. A, title I, §1317, July 6, 2012, 126 Stat. 550, as amended by Pub. L. 114–94, div. A, title I, §1314(a), Dec. 4, 2015, 129 Stat. 1402; Pub. L. 117–58, div. A, title I, §11317, Nov. 15, 2021, 135 Stat. 543, provided that: "Not later than 180 days after the date of enactment of this Act [see section 3(a), (b) of Pub. L. 112–141, set out as Effective and Termination Dates of 2012 Amendment notes under section 101 of this title], the Secretary [of Transportation] shall—

"(1) designate as an action categorically excluded from the requirements relating to environmental assessments or environmental impact statements under section 1508.4 of title 40, Code of Federal Regulations, and section 771.117(c) of title 23, Code of Federal Regulations, any project—

"(A) that receives less than $6,000,000 (as adjusted annually by the Secretary [of Transportation] to reflect any increases in the Consumer Price Index prepared by the Department of Labor) of Federal funds; or

"(B) with a total estimated cost of not more than $35,000,000 (as adjusted annually by the Secretary to reflect any increases in the Consumer Price Index prepared by the Department of Labor) and Federal funds comprising less than 15 percent of the total estimated project cost; and

"(2) not later than 150 days after the date of enactment of this Act, promulgate regulations to carry out paragraph (1)."

Programmatic Agreements and Additional Categorical Exclusions

Pub. L. 112–141, div. A, title I, §1318, July 6, 2012, 126 Stat. 550, as amended by Pub. L. 114–94, div. A, title I, §1315(a), Dec. 4, 2015, 129 Stat. 1403, provided that:

"(a) In General.—Not later than 60 days after the date of enactment of this Act [see section 3(a), (b) of Pub. L. 112–141, set out as Effective and Termination Dates of 2012 Amendment notes under section 101 of this title], the Secretary [of Transportation] shall—

"(1) survey the use by the Department [of Transportation] of categorical exclusions in transportation projects since 2005;

"(2) publish a review of the survey that includes a description of—

"(A) the types of actions categorically excluded; and

"(B) any requests previously received by the Secretary for new categorical exclusions; and

"(3) solicit requests from State departments of transportation, transit authorities, metropolitan planning organizations, or other government agencies for new categorical exclusions.

"(b) New Categorical Exclusions.—Not later than 120 days after the date of enactment of this Act, the Secretary shall publish a notice of proposed rulemaking to propose new categorical exclusions received by the Secretary under subsection (a), to the extent that the categorical exclusions meet the criteria for a categorical exclusion under section 1508.4 of title 40, Code of Federal Regulations, and section 771.117(a) of title 23, Code of Federal Regulations (as those regulations are in effect on the date of the notice).

"(c) Additional Actions.—The Secretary shall issue a proposed rulemaking to move the following types of actions from subsection (d) of section 771.117 of title 23, Code of Federal Regulations (as in effect on the date of enactment of this Act), to subsection (c) of that section, to the extent that such movement complies with the criteria for a categorical exclusion under section 1508.4 of title 40, Code of Federal Regulations (as in effect on the date of enactment of this Act):

"(1) Modernization of a highway by resurfacing, restoration, rehabilitation, reconstruction, adding shoulders, or adding auxiliary lanes (including parking, weaving, turning, and climbing).

"(2) Highway safety or traffic operations improvement projects, including the installation of ramp metering control devices and lighting.

"(3) Bridge rehabilitation, reconstruction, or replacement or the construction of grade separation to replace existing at-grade railroad crossings.

"(d) Programmatic Agreements.—

"(1) In general.—The Secretary shall seek opportunities to enter into programmatic agreements with the States that establish efficient administrative procedures for carrying out environmental and other required project reviews.

"(2) Inclusions.—Programmatic agreements authorized under paragraph (1) may include agreements that allow a State to determine on behalf of the Federal Highway Administration whether a project is categorically excluded from the preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).

"(3) Determinations.—An agreement described in paragraph (2) may include determinations by the Secretary [of Transportation] of the types of projects categorically excluded (consistent with section 1508.4 of title 40, Code of Federal Regulations) in the State in addition to the types listed in subsections (c) and (d) of section 771.117 of title 23, Code of Federal Regulations (as in effect on the date of enactment of this Act).

"(e) Programmatic Agreement Template.—

"(1) In general.—The Secretary [of Transportation] shall develop a template programmatic agreement described in subsection (d) that provides for efficient and adequate procedures for evaluating Federal actions described in section 771.117(c) of title 23, Code of Federal Regulations (as in effect on the date of enactment of this subsection [Dec. 4, 2015]).

"(2) Use of template.—The Secretary—

"(A) on receipt of a request from a State, shall use the template programmatic agreement developed under paragraph (1) in carrying out this section; and

"(B) on consent of the applicable State, may modify the template as necessary to address the unique needs and characteristics of the State.

"(3) Outcome measurements.—The Secretary shall establish a method to verify that actions described in section 771.117(c) of title 23, Code of Federal Regulations (as in effect on the date of enactment of this subsection), are evaluated and documented in a consistent manner by the State that uses the template programmatic agreement under this subsection."

Engineering Judgment

Pub. L. 112–141, div. A, title I, §1529, July 6, 2012, 126 Stat. 583, provided that: "Not later than 90 days after the date of enactment of this Act [see section 3(a), (b) of Pub. L. 112–141, set out as Effective and Termination Dates of 2012 Amendment notes under section 101 of this title], the Secretary [of Transportation] shall issue guidance to State transportation departments clarifying that the standards, guidance, and options for design and application of traffic control devices provided in the Manual on Uniform Traffic Control Devices should not be considered a substitute for engineering judgment."

Highway Signs Relating to Veterans Cemeteries

Pub. L. 108–29, §3, May 29, 2003, 117 Stat. 772, provided that:

"(a) In General.—Notwithstanding the terms of any agreement entered into by the Secretary of Transportation and a State under section 109(d) or 402(a) of title 23, United States Code, a veterans cemetery shall be treated as a site for which a supplemental guide sign may be placed on any Federal-aid highway.

"(b) Applicability.—Subsection (a) shall apply to an agreement entered into before, on, or after the date of the enactment of this Act [May 29, 2003]."

International Roughness Index

Pub. L. 105–178, title I, §1213(b), June 9, 1998, 112 Stat. 200, provided that:

"(1) Study.—The Comptroller General of the United States shall conduct a study on the international roughness index that is used as an indicator of pavement quality on the Federal-aid highway system.

"(2) Required elements.—The study shall specify the extent of usage of the index and the extent to which the international roughness index measurement is reliable across different manufacturers and types of pavement.

"(3) Report to congress.—Not later than 2 years after the date of enactment of this Act [June 9, 1998], the Comptroller General shall submit to Congress a report on the results of the study."

Environmental Streamlining

Pub. L. 105–178, title I, §1309, June 9, 1998, 112 Stat. 232, as amended by Pub. L. 105–206, title IX, §9004(c), July 22, 1998, 112 Stat. 843, which directed the Secretary of Transportation to develop and implement a coordinated environmental review process for highway construction and mass transit projects, was repealed by Pub. L. 109–59, title VI, §6002(d), Aug. 10, 2005, 119 Stat. 1865.

Roadside Safety Technologies

Pub. L. 105–178, title I, §1402, June 9, 1998, 112 Stat. 236, as amended by Pub. L. 105–206, title IX, §9005(c), July 22, 1998, 112 Stat. 848, provided that:

"(a) Crash Cushions.—

"(1) Guidance.—Not later than 18 months after the date of enactment of this Act [June 9, 1998], the Secretary shall issue guidance regarding the benefits and safety performance of redirective and nonredirective crash cushions in different road applications, taking into consideration roadway conditions, operating speed limits, the location of the crash cushion in the right-of-way, and any other relevant factors. The guidance shall include recommendations on the most appropriate circumstances for utilization of redirective and nonredirective crash cushions.

"(2) Use of guidance.—States shall use the guidance issued under this subsection in evaluating the safety and cost-effectiveness of utilizing different crash cushion designs and determining whether redirective or nonredirective crash cushions or other safety appurtenances should be installed at specific highway locations.

"(b) Traffic Flow and Safety Applications of Road Barriers.—

"(1) Study.—The Secretary shall conduct a study on the technologies and methods to enhance safety, streamline construction, and improve capacity by providing positive separation at all times between traffic, equipment, and workers on highway construction projects. The study shall also address how such technologies can be used to improve capacity and safety at those specific highway, bridge, and other appropriate locations where reversible lane, contraflow, and high occupancy vehicle lane operations are implemented during peak traffic periods.

"(2) Uses to consider.—In conducting the study, the Secretary shall consider, at a minimum, uses of positive separation technologies related to—

"(A) separating workers from traffic flow when work is in progress;

"(B) providing additional safe work space by utilizing adjacent and available traffic lanes during off-peak hours;

"(C) rapid deployment to allow for daily or periodic restoration of lanes for use by traffic during peak hours as needed;

"(D) mitigating congestion caused by construction by—

"(i) opening all adjacent and available lanes to traffic during peak traffic hours; or

"(ii) using reversible lanes to optimize capacity of the highway by adjusting to directional traffic flow; and

"(E) permanent use of positive separation technologies to create contraflow or reversible lanes to increase the capacity of congested highways, bridges, and tunnels.

"(3) Report.—Not later than 18 months after the date of enactment of this Act [June 9, 1998], the Secretary shall submit to Congress a report on the results of the study. The report shall include findings and recommendations for the use of the technologies referred to in paragraph (2) to provide positive separation on appropriate projects."

Metric Requirements

Pub. L. 104–59, title II, §205(c), Nov. 28, 1995, 109 Stat. 577, as amended by Pub. L. 105–178, title I, §1211(d), June 9, 1998, 112 Stat. 188, provided that:

"(1) Placement and modification of signs.—The Secretary shall not require the States to expend any Federal or State funds to construct, erect, or otherwise place or to modify any sign relating to a speed limit, distance, or other measurement on a highway for the purpose of having such sign establish such speed limit, distance, or other measurement using the metric system.

"(2) Other actions.—The Secretary shall not require that any State use or plan to use the metric system with respect to designing or advertising, or preparing plans, specifications, estimates, or other documents, for a Federal-aid highway project eligible for assistance under title 23, United States Code.

"(3) Definitions.—In this subsection, the following definitions apply:

"(A) Highway.—The term 'highway' has the meaning such term has under section 101 of title 23, United States Code.

"(B) Metric system.—The term 'metric system' has the meaning the term 'metric system of measurement' has under section 4 of the Metric Conversion Act of 1975 (15 U.S.C. 205c)."

Type II Noise Barriers

Pub. L. 104–59, title III, §339(b), Nov. 28, 1995, 109 Stat. 605, provided that:

"(1) General rule.—No funds made available out of the Highway Trust Fund may be used to construct Type II noise barriers (as defined by section 772.5(i) of title 23, Code of Federal Regulations) pursuant to subsections (h) and (i) of section 109 of title 23, United States Code, if such barriers were not part of a project approved by the Secretary before the date of the enactment of this Act [Nov. 28, 1995].

"(2) Exceptions.—Paragraph (1) shall not apply to construction of Type II noise barriers along lands that were developed or were under substantial construction before approval of the acquisition of the rights-of-ways for, or construction of, the existing highway."

Highway Signs for National Highway System

Pub. L. 104–59, title III, §359(b), Nov. 28, 1995, 109 Stat. 626, provided that:

"(1) Study.—The Secretary shall conduct a study to determine the cost, need, and efficacy of establishing a highway sign for identifying routes on the National Highway System. In conducting the study, the Secretary shall make a determination concerning whether to identify National Highway System route numbers.

"(2) Report.—Not later than March 1, 1997, the Secretary shall transmit to Congress a report on the results of the study."

Use of Recycled Paving Material

Pub. L. 102–240, title I, §1038, Dec. 18, 1991, 105 Stat. 1987, as amended by Pub. L. 104–59, title II, §205(b), title III, §327, Nov. 28, 1995, 109 Stat. 577, 592, provided that:

"(a) Asphalt Pavement Containing Recycled Rubber Demonstration Program.—Notwithstanding any other provision of title 23, United States Code, or regulation or policy of the Department of Transportation, the Secretary (or a State acting as the Department's agent) may not disapprove a highway project under chapter 1 of title 23, United States Code, on the ground that the project includes the use of asphalt pavement containing recycled rubber. Under this subsection, a patented application process for recycled rubber shall be eligible for approval under the same conditions that an unpatented process is eligible for approval.

"(b) Studies.—

"(1) In general.—The Secretary and the Administrator of the Environmental Protection Agency shall coordinate and conduct, in cooperation with the States, a study to determine—

"(A) the threat to human health and the environment associated with the production and use of asphalt pavement containing recycled rubber;

"(B) the degree to which asphalt pavement containing recycled rubber can be recycled; and

"(C) the performance of the asphalt pavement containing recycled rubber under various climate and use conditions.

"(2) Division of responsibilities.—The Administrator shall conduct the part of the study relating to paragraph (1)(A) and the Secretary shall conduct the part of the study relating to paragraph (1)(C). The Administrator and the Secretary shall jointly conduct the study relating to paragraph (1)(B).

"(3) Additional study.—The Secretary and the Administrator, in cooperation with the States, shall jointly conduct a study to determine the economic savings, technical performance qualities, threats to human health and the environment, and environmental benefits of using recycled materials in highway devices and appurtenances and highway projects, including asphalt containing over 80 percent reclaimed asphalt, asphalt containing recycled glass, and asphalt containing recycled plastic.

"(4) Additional elements.—In conducting the study under paragraph (3), the Secretary and the Administrator shall examine utilization of various technologies by States and shall examine the current practices of all States relating to the reuse and disposal of materials used in federally assisted highway projects.

"(5) Report.—Not later than 18 months after the date of the enactment of this Act [Dec. 18, 1991], the Secretary and the Administrator shall transmit to Congress a report on the results of the studies conducted under this subsection, including a detailed analysis of the economic savings and technical performance qualities of using such recycled materials in federally assisted highway projects and the environmental benefits of using such recycled materials in such highway projects in terms of reducing air emissions, conserving natural resources, and reducing disposal of the materials in landfills.

"(c) DOT Guidance.—

"(1) Information gathering and distribution.—The Secretary shall gather information and recommendations concerning the use of asphalt containing recycled rubber in highway projects from those States that have extensively evaluated and experimented with the use of such asphalt and implemented such projects and shall make available such information and recommendations on the use of such asphalt to those States which indicate an interest in the use of such asphalt.

"(2) Encouragement of use.—The Secretary should encourage the use of recycled materials determined to be appropriate by the studies pursuant to subsection (b) in federally assisted highway projects. Procuring agencies shall comply with all applicable guidelines or regulations issued by the Administrator of the Environmental Protection Agency.

"(d) Asphalt Pavement Containing Recycled Rubber.—

"(1) Crumb rubber modifier research.—Not later than 180 days after the date of the enactment of the National Highway System Designation Act of 1995 [Nov. 28, 1995], the Secretary shall develop testing procedures and conduct research to develop performance grade classifications, in accordance with the strategic highway research program carried out under section 307(d) of title 23, United States Code, for crumb rubber modifier binders. The testing procedures and performance grade classifications should be developed in consultation with representatives of the crumb rubber modifier industry and other interested parties (including the asphalt paving industry) with experience in the development of the procedures and classifications.

"(2) Crumb rubber modifier program development.—

"(A) In general.—The Secretary may make grants to States to develop programs to use crumb rubber from scrap tires to modify asphalt pavements.

"(B) Use of grant funds.—Grant funds made available to States under this paragraph shall be used—

"(i) to develop mix designs for crumb rubber modified asphalt pavements;

"(ii) for the placement and evaluation of crumb rubber modified asphalt pavement field tests; and

"(iii) for the expansion of State crumb rubber modifier programs in existence on the date the grant is made available.

"(e) Definitions.—For purpose of this section—

"(1) the term 'asphalt pavement containing recycled rubber' means any mixture of asphalt and crumb rubber derived from whole scrap tires, such that the physical properties of the asphalt are modified through the mixture, for use in pavement maintenance, rehabilitation, or construction applications; and

"(2) the term 'recycled rubber' is any crumb rubber derived from processing whole scrap tires or shredded tire material taken from automobiles, trucks, or other equipment owned and operated in the United States."

Survey and Report on Upgrading of Design Standards

Pub. L. 102–240, title I, §1049, Dec. 18, 1991, 105 Stat. 2000, directed Secretary to conduct a survey to identify current State standards relating to geometric design, traffic control devices, roadside safety, safety appurtenance design, uniform traffic control devices, and sign legibility and directional clarity for all Federal-aid highways and, not later than 2 years after Dec. 18, 1991, to transmit to Congress a report on the results of the survey and the crashworthiness of traffic lights, traffic signs, guardrails, impact attenuators, concrete barrier treatments, and breakaway utility poles for bridges and roadways currently used by States.

Erosion Control Guidelines

Pub. L. 102–240, title I, §1057, Dec. 18, 1991, 105 Stat. 2002, provided that:

"(a) Development.—The Secretary shall develop erosion control guidelines for States to follow in carrying out construction projects funded in whole or in part under this title [see Tables for classification].

"(b) More Stringent State Requirements.—Guidelines developed under subsection (a) shall not preempt any requirement made by or under State law if such requirement is more stringent than the guidelines.

"(c) Consistency With Other Programs.—Guidelines developed under subsection (a) shall be consistent with nonpoint source management programs under section 319 of the Federal Water Pollution Control Act [33 U.S.C. 1329] and coastal nonpoint pollution control guidance under section 6217(g) of the Omnibus Budget Reconciliation Act of 1990 [16 U.S.C. 1455b(g)]."

Roadside Barrier Technology

Pub. L. 102–240, title I, §1058, Dec. 18, 1991, 105 Stat. 2003, as amended by Pub. L. 104–59, title III, §328, Nov. 28, 1995, 109 Stat. 593, provided that:

"(a) Requirement for Innovative Barriers.—Not less than 2½ percent of the mileage of new or replacement permanent or temporary crashworthy barriers included in awarded contracts along Federal-aid highways within the boundaries of a State in each calendar year shall be innovative crashworthy safety barriers.

"(b) Certification.—Each State shall annually certify to the Secretary its compliance with the requirements of this section.

"(c) Definition of Innovative Crashworthy Safety Barrier.—For purposes of this section, the term 'innovative crashworthy safety barrier' means a barrier, other than a guardrail or guiderail, classified by the Federal Highway Administration as 'experimental' or that was classified as 'operational' after January 1, 1985, and that meets or surpasses the requirements of the National Cooperative Highway Research Program 350 for longitudinal barriers."

Roadside Barriers and Safety Appurtenances

Pub. L. 102–240, title I, §1073, Dec. 18, 1991, 105 Stat. 2012, provided that:

"(a) Initiation of Rulemaking Proceeding.—Not later than 30 days after the date of the enactment of this Act [Dec. 18, 1991], the Secretary shall initiate a rulemaking proceeding to revise the guidelines and establish standards for installation of roadside barriers and other safety appurtenances, including longitudinal barriers, end terminals, and crash cushions. Such rulemaking shall reflect state-of-the-art designs, testing, and evaluation criteria contained in the National Cooperative Highway Research Program Report 230, relating to approval standards which provide an enhanced level of crashworthy performance to accommodate vans, mini-vans, pickup trucks, and 4-wheel drive vehicles.

"(b) Final Rule.—Not later than 1 year after the date of the enactment of this Act [Dec. 18, 1991], the Secretary shall complete the rulemaking proceeding initiated under subsection (a), and issue a final rule regarding the implementation of revised guidelines and standards for acceptable roadside barriers and other safety appurtenances, including longitudinal barriers, end terminals, and crash cushions. Such revised guidelines and standards shall accommodate vans, mini-vans, pickup trucks, and 4-wheel drive vehicles and shall be applicable to the refurbishment and replacement of existing roadside barriers and safety appurtenances as well as to the installation of new roadside barriers and safety appurtenances."

Studies Relating to Establishment of Standards for Resurfacing, Restoration, and Rehabilitation of Highways and to Establishment of Uniform Standards and Criteria for Testing and Inspecting Highways and Bridges

Pub. L. 97–424, title I, §110(b), (c), Jan. 6, 1983, 96 Stat. 2105, provided that:

"(b) The Secretary of Transportation shall enter into appropriate arrangements with the National Academy of Sciences (1) to conduct a study of the safety cost-effectiveness of geometric design criteria of standards currently in effect for construction and reconstruction of highways, other than highways access to which is fully controlled, to determine the most appropriate minimum standards to apply to resurfacing, restoration, and rehabilitation projects on such highways, which study shall include a study of the cost effectiveness of the hot dip galvanizing process for the installation, repair, or replacement of exposed structural and miscellaneous steel, and (2) to propose standards to preserve and extend the service life of such highways and enhance highway safety. The National Academy of Sciences shall conduct such study in cooperation with the National Transportation Safety Board, the Congressional Budget Office, and the American Association of State Highway and Transportation Officials. Upon completion of such study, the National Academy of Sciences shall submit such study and its proposed standards to the Secretary of Transportation for review. Within ninety days after submission of such standards to the Secretary of Transportation, the Secretary shall submit such study and the proposed standards of the National Academy of Sciences, together with the recommendations of the Secretary, to Congress for approval.

"(c)(1) The Secretary of Transportation is directed to coordinate a study with the National Bureau of Standards, the American Society for Testing and Materials, and other organizations as deemed appropriate, (A) to determine the existing quality of design, construction, products, use, and systems for highways and bridges; (B) to determine the need for uniform standards and criteria for design, processing, products, and applications, including personnel training and implementation of enforcement techniques; and (C) to determine the manpower needs and costs of developing a national system for the evaluation and accreditation of testing and inspection agencies.

"(2) The Secretary shall submit such study to the Congress not later than one year after the date of enactment of this section [Jan. 6, 1983]."

Expenditure of Federal Funds for Highway Signs Using Metric System

Pub. L. 95–599, title I, §144, Nov. 6, 1978, 92 Stat. 2713, as amended by Pub. L. 96–106, §14, Nov. 9, 1979, 93 Stat. 798, which prohibited use of Federal funds for signing solely in the metric system, was repealed by Pub. L. 102–240, title I, §1053, Dec. 18, 1991, 105 Stat. 2001.

Modification of Project Agreements To Effectuate Requirement of Four-Lanes of Traffic

Authorization to modify projects agreements entered into prior to September 13, 1966, to effectuate the amendment of this section by Pub. L. 89–574 which added the requirement of four-lanes of traffic, see section 5(b) of Pub. L. 89–574, set out as a note under section 106 of this title.

1 Designations so in original.
23 U.S.C. § 114 (2024) — Title 23: HIGHWAYS / Chapter 1: FEDERAL-AID HIGHWAYS / Section 114: Construction
Construction
Status: in_force

(a) Construction Work In General.—The construction of any Federal-aid highway or a portion of a Federal-aid highway shall be undertaken by the respective State transportation departments or under their direct supervision. The Secretary shall have the right to conduct such inspections and take such corrective action as the Secretary determines to be appropriate. The construction work and labor in each State shall be performed under the direct supervision of the State transportation department and in accordance with the laws of that State and applicable Federal laws. Construction may be begun as soon as funds are available for expenditure pursuant to subsection (a) of section 118 of this title. After July 1, 1973, the State transportation department shall not erect on any project where actual construction is in progress and visible to highway users any informational signs other than official traffic control devices conforming with standards developed by the Secretary of Transportation.

(b) Convict Labor and Convict Produced Materials.—

(1) Limitation on convict labor.—Convict labor shall not be used in construction of Federal-aid highways or portions of Federal-aid highways unless the labor is performed by convicts who are on parole, supervised release, or probation.

(2) Limitation on convict produced materials.—Materials produced after July 1, 1991, by convict labor may only be used in such construction—

(A) if such materials are produced by convicts who are on parole, supervised release, or probation from a prison; or

(B) if such materials are produced by convicts in a qualified prison facility and the amount of such materials produced in such facility for use in such construction during any 12-month period does not exceed the amount of such materials produced in such facility for use in such construction during the 12-month period ending July 1, 1987.

(3) Qualified prison facility defined.—As used in this subsection, "qualified prison facility" means any prison facility in which convicts, during the 12-month period ending July 1, 1987, produced materials for use in construction of highways or portions of highways located on a Federal-aid system in existence during that period.

(c) Construction Work in Alaska.—

(1) In general.—The Secretary shall ensure that a worker who is employed on a remote project for the construction of a highway or portion of a highway located on a Federal-aid system in the State of Alaska and who is not a domiciled resident of the locality shall receive meals and lodging.

(2) Lodging.—The lodging under paragraph (1) shall be in accordance with section 1910.142 of title 29, Code of Federal Regulations (relating to temporary labor camp requirements).

(3) Per diem.—

(A) In general.—Contractors are encouraged to use commercial facilities and lodges on remote projects, however, when such facilities are not available, per diem in lieu of room and lodging may be paid on remote Federal highway projects at a basic rate of $75.00 per day or part of a day the worker is employed on the project. Where the contractor provides or furnishes room and lodging or pays a per diem, the cost of the amount shall not be considered a part of wages and shall be excluded from the calculation of wages.

(B) Secretary of labor.—Such per diem rate shall be adopted by the Secretary of Labor for all applicable remote Federal highway projects in Alaska.

(C) Exception.—Per diem shall not be allowed on any of the following remote projects for the construction of a highway or portion of a highway located on a Federal-aid system:

(i) West of Livengood on the Elliot Highway.

(ii) Mile 0 on the Dalton Highway to the North Slope of Alaska; north of Mile 20 on the Taylor Highway.

(iii) East of Chicken on the Top of the World Highway and south of Tetlin Junction to the Alaska Canadian border.

(4) Definitions.—In this subsection, the following definitions apply:

(A) Remote.—The term "remote", as used with respect to a project, means that the project is 65 road miles or more from the international airport in Fairbanks, Anchorage, or Juneau, Alaska, as the case may be, or is inaccessible by road in a 2-wheel drive vehicle.

(B) Resident.—The term "resident", as used with respect to a project, means a person living within 65 road miles of the midpoint of the project for at least 12 consecutive months prior to the award of the project.

(d) Veterans Employment.—

(1) In general.—Subject to paragraph (2), a recipient of Federal financial assistance under this chapter shall, to the extent practicable, encourage contractors working on a highway project funded using the assistance to make a best faith effort in the hiring or referral of laborers on any project for the construction of a highway to veterans (as defined in section 2108 of title 5) who have the requisite skills and abilities to perform the construction work required under the contract.

(2) Administration.—This subsection shall not—

(A) apply to projects subject to section 140(d); or

(B) be administered or enforced in any manner that would require an employer to give a preference to any veteran over any equally qualified applicant who is a member of any racial or ethnic minority, a female, or any equally qualified former employee.

(Pub. L. 85–767, Aug. 27, 1958, 72 Stat. 896; Pub. L. 86–657, §8(f), July 14, 1960, 74 Stat. 525; Pub. L. 93–87, title I, §115, Aug. 13, 1973, 87 Stat. 258; Pub. L. 97–424, title I, §148, Jan. 6, 1983, 96 Stat. 2131; Pub. L. 98–473, title II, §226, Oct. 12, 1984, 98 Stat. 2030; Pub. L. 100–17, title I, §112(a), (b)(1), Apr. 2, 1987, 101 Stat. 148; Pub. L. 102–240, title I, §1019, Dec. 18, 1991, 105 Stat. 1948; Pub. L. 105–178, title I, §1212(a)(2)(A), June 9, 1998, 112 Stat. 193; Pub. L. 109–59, title I, §§1409(d), 1904(b), Aug. 10, 2005, 119 Stat. 1232, 1467; Pub. L. 112–141, div. A, title I, §1506, July 6, 2012, 126 Stat. 564.)

Editorial Notes

Amendments

2012—Subsec. (b)(1). Pub. L. 112–141, §1506(1)(A), added par. (1) and struck out former par. (1). Prior to amendment, text read as follows: "Convict labor shall not be used in construction of highways or portions of highways located on a Federal-aid system unless it is labor performed by convicts who are on parole, supervised release, or probation."

Subsec. (b)(3). Pub. L. 112–141, §1506(1)(B), inserted "in existence during that period" after "located on a Federal-aid system".

Subsec. (d). Pub. L. 112–141, §1506(2), added subsec. (d).

2005—Subsec. (a). Pub. L. 109–59, §1904(b), substituted "Federal-aid highway or a portion of a Federal-aid highway" for "highways or portions of highways located on a Federal-aid system" and "The Secretary shall have the right to conduct such inspections and take such corrective action as the Secretary determines to be appropriate." for "Except as provided in section 117 of this title, such construction shall be subject to the inspection and approval of the Secretary."

Subsec. (c). Pub. L. 109–59, §1409(d), added subsec. (c).

1998—Subsec. (a). Pub. L. 105–178 substituted "State transportation department" for "State highway department" in two places and "State transportation departments" for "State highway departments".

1991—Subsec. (b)(2). Pub. L. 102–240, inserted "after July 1, 1991," after "Materials produced" in introductory provisions.

1987—Subsec. (a). Pub. L. 100–17, §112(b)(1), inserted heading.

Subsec. (b). Pub. L. 100–17, §112(b)(1), amended subsec. (b) generally. Prior to amendment, subsec. (b) read as follows: "Convict labor or materials produced by convict labor shall not be used in such construction unless it is labor performed by convicts who are on parole or probation."

1984—Subsec. (b). Pub. L. 98–473 which directed the insertion of ", supervised release," after "parole" effective Nov. 1, 1987, was not executed, because of intervening general amendment of subsec. (b) by Pub. L. 100–17, §112(a), which contained ", supervised release," after "parole" wherever appearing.

1983—Subsec. (b). Pub. L. 97–424 inserted "or materials produced by convict labor" after "Convict labor".

1973—Subsec. (a). Pub. L. 93–87 amended last sentence generally. Prior to amendment, last sentence read as follows: "On any project where actual construction is in progress and visible to highway users, the State highway department shall erect such informational sign or signs as prescribed by the Secretary, identifying the project and the respective amounts contributed therefor by the State and Federal Governments."

1960—Subsec. (a). Pub. L. 86–657 required State highway departments to erect, on any project where actual construction is in progress and visible to highway users, such informational sign or signs as prescribed by the Secretary, identifying the project and the respective contributions therefor by the State and Federal Governments.

Statutory Notes and Related Subsidiaries

Effective Date of 2012 Amendment

Amendment by Pub. L. 112–141 effective Oct. 1, 2012, see section 3(a) of Pub. L. 112–141, set out as an Effective and Termination Dates of 2012 Amendment note under section 101 of this title.

Effective Date of 1991 Amendment

Amendment by Pub. L. 102–240 effective Dec. 18, 1991, and applicable to funds authorized to be appropriated or made available after Sept. 30, 1991, and, with certain exceptions, not applicable to funds appropriated or made available on or before Sept. 30, 1991, see section 1100 of Pub. L. 102–240, set out as a note under section 104 of this title.

Effective Date of 1984 Amendment

Amendment by Pub. L. 98–473 effective Nov. 1, 1987, and applicable only to offenses committed after the taking effect of this amendment, see section 235(a)(1) of Pub. L. 98–473, set out as an Effective Date note under section 3551 of Title 18, Crimes and Criminal Procedure.

Local Hiring Preference for Construction Jobs

Pub. L. 117–58, div. B, title V, §25019, Nov. 15, 2021, 135 Stat. 875, provided that:

"(a) Authorization.—

"(1) In general.—A recipient or subrecipient of a grant provided by the Secretary [of Transportation] under title 23 or 49, United States Code, may implement a local or other geographical or economic hiring preference relating to the use of labor for construction of a project funded by the grant, including prehire agreements, subject to any applicable State and local laws, policies, and procedures.

"(2) Treatment.—The use of a local or other geographical or economic hiring preference pursuant to paragraph (1) in any bid for a contract for the construction of a project funded by a grant described in paragraph (1) shall not be considered to unduly limit competition.

"(b) Workforce Diversity Report.—Not later than 1 year after the date of enactment of this Act [Nov. 15, 2021], the Secretary shall submit to Congress a report describing methods—

"(1) to ensure preapprenticeship programs are established and implemented to meet the needs of employers in transportation and transportation infrastructure construction industries, including with respect to the formal connection of the preapprenticeship programs to registered apprenticeship programs;

"(2) to address barriers to employment (within the meaning of the Workforce Innovation and Opportunity Act (29 U.S.C. 3101 et seq.)) in transportation and transportation infrastructure construction industries for—

"(A) individuals who are former offenders (as defined in section 3 of the Workforce Innovation and Opportunity Act (29 U.S.C. 3102));

"(B) individuals with a disability (as defined in section 3 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12102)); and

"(C) individuals that represent populations that are traditionally underrepresented in the workforce; and

"(3) to encourage a recipient or subrecipient implementing a local or other geographical or economic hiring preference pursuant to subsection (a)(1) to establish, in coordination with nonprofit organizations that represent employees, outreach and support programs that increase diversity within the workforce, including expanded participation from individuals described in subparagraphs (A) through (C) of paragraph (2).

"(c) Model Plan.—Not later than 1 year after the date of submission of the report under subsection (b), the Secretary shall establish, and publish on the website of the Department [of Transportation], a model plan for use by States, units of local government, and private sector entities to address the issues described in that subsection."

Highways for Life Pilot Program

Pub. L. 109–59, title I, §1502, Aug. 10, 2005, 119 Stat. 1236, provided that:

"(a) Establishment.—

"(1) In general.—The Secretary [of Transportation] shall establish and implement a pilot program to be known as the 'Highways for LIFE Pilot Program'.

"(2) Purpose.—The purpose of the pilot program shall be to advance longer-lasting highways using innovative technologies and practices to accomplish the fast construction of efficient and safe highways and bridges.

"(3) Objectives.—Under the pilot program, the Secretary shall provide leadership and incentives to demonstrate and promote state-of-the-art technologies, elevated performance standards, and new business practices in the highway construction process that result in improved safety, faster construction, reduced congestion from construction, and improved quality and user satisfaction.

"(b) Projects.—

"(1) Applications.—To be eligible to participate in the pilot program, a State shall submit to the Secretary [of Transportation] an application that is in such form and contains such information as the Secretary requires. Each application shall contain a description of proposed projects to be carried by the State under the pilot program.

"(2) Eligibility.—A proposed project shall be eligible for assistance under the pilot program if the project—

"(A) constructs, reconstructs, or rehabilitates a route or connection on a Federal-aid highway eligible for assistance under chapter 1 of title 23, United States Code;

"(B) uses innovative technologies, manufacturing processes, financing, or contracting methods that improve safety, reduce congestion due to construction, and improve quality; and

"(C) meets additional criteria as determined by the Secretary.

"(3) Project proposal.—A project proposal submitted under paragraph (1) shall contain—

"(A) an identification and description of the projects to be delivered;

"(B) a description of how the projects will result in improved safety, faster construction, reduced congestion due to construction, user satisfaction, and improved quality;

"(C) a description of the innovative technologies, manufacturing processes, financing, and contracting methods that will be used for the proposed projects; and

"(D) such other information as the Secretary may require.

"(4) Selection criteria.—In selecting projects for approval under this section, the Secretary shall ensure that the projects provide an evaluation of a broad range of technologies in a wide variety of project types and shall give priority to the projects that—

"(A) address achieving the Highways for LIFE performance standards for quality, safety, and speed of construction;

"(B) deliver and deploy innovative technologies, manufacturing processes, financing, contracting practices, and performance measures that will demonstrate substantial improvements in safety, congestion, quality, and cost-effectiveness;

"(C) include innovation that will lead to change in the administration of the State's transportation program to more quickly construct long-lasting, high-quality, cost-effective projects that improve safety and reduce congestion;

"(D) are or will be ready for construction within 1 year of approval of the project proposal; and

"(E) meet such other criteria as the Secretary determines appropriate.

"(5) Financial assistance.—

"(A) Funds for highways for life projects.—Out of amounts made available to carry out this section for a fiscal year, the Secretary may allocate to a State up to 20 percent, but not more than $5,000,000, of the total cost of a project approved under this section. Notwithstanding any other provision of law, funds allocated to a State under this subparagraph may be applied to the non-Federal share of the cost of construction of a project under title 23, United States Code.

"(B) Use of apportioned funds.—A State may obligate not more than 10 percent of the amount apportioned to the State under one or more of [former] paragraphs (1), (2), (3), and (4) of section 104(b) of title 23, United States Code, for a fiscal year for projects approved under this section.

"(C) Increased federal share.—Notwithstanding sections 120 and 129 of title 23, United States Code, the Federal share payable on account of any project constructed with Federal funds allocated under this section, or apportioned under [former] section 104(b) of such title, to a State under such title and approved under this section may amount to 100 percent of the cost of construction of such project.

"(D) Limitation on statutory construction.—Except as provided in subparagraph (C), nothing in this subsection shall be construed as altering or otherwise affecting the applicability of the requirements of chapter 1 of title 23, United States Code (including requirements relating to the eligibility of a project for assistance under the program and the location of the project), to amounts apportioned to a State for a program under [former] section 104(b) that are obligated by the State for projects approved under this subsection.

"(6) Project selections.—In the period of fiscal years 2005 through 2009, the Secretary, to the maximum extent possible, shall approve at least 1 project in each State for participation in the pilot program and for financial assistance under paragraph (5) if the State submits an application and the project meets the eligibility requirements and selection criteria under this subsection.

"(7) Maximum number of projects.—The maximum number of projects for which the Secretary may allocate funds under this subsection in a fiscal year is 15.

"(c) Technology Partnerships.—

"(1) In general.—The Secretary [of Transportation] may make grants or enter into cooperative agreements or other transactions to foster the development, improvement, and creation of innovative technologies and facilities to improve safety, enhance the speed of highway construction, and improve the quality and durability of highways.

"(2) Federal share.—The Federal share of the cost of an activity carried out under this subsection shall not exceed 80 percent.

"(d) Technology Transfer and Information Dissemination.—

"(1) In general.—The Secretary [of Transportation] shall conduct a highways for life technology transfer program.

"(2) Availability of information.—The Secretary shall ensure that the information and technology used, developed, or deployed under this subsection is made available to the transportation community and the public.

"(e) Stakeholder Input and Involvement.—The Secretary [of Transportation] shall establish a process for stakeholder input and involvement in the development, implementation, and evaluation of the Highways for LIFE Pilot Program. The process may include participation by representatives of State departments of transportation and other interested persons.

"(f) Project Monitoring and Evaluation.—The Secretary [of Transportation] shall monitor and evaluate the effectiveness of any activity carried out under this section.

"(g) Contract Authority.—Except as otherwise provided in this section, funds authorized to be appropriated to carry out this section shall be available for obligation in the same manner as if the funds were apportioned under chapter 1 of title 23, United States Code.

"(h) State Defined.—In this section, the term 'State' has the meaning such term has in section 101(a) of title 23, United States Code."

Materials Produced by Convict Labor

Pub. L. 101–162, title II, §202, Nov. 21, 1989, 103 Stat. 1002, provided that: "During fiscal year 1990 and hereafter, materials produced by convict labor may be used in the construction of any highways or portion of highways located on Federal-aid systems, as described in section 103 of title 23, United States Code."

Similar fiscal year provisions were contained in the following appropriation acts:

Pub. L. 100–459, title II, §202, Oct. 1, 1988, 102 Stat. 2199.

Pub. L. 100–202, §101(a) [title II, §202], Dec. 22, 1987, 101 Stat. 1329, 1329–15.

Pub. L. 99–500, §101(b) [title II, §202], Oct. 18, 1986, 100 Stat. 1783–39, 1783–51, and Pub. L. 99–591, §101(b) [title II, §202], Oct. 30, 1986, 100 Stat. 3341–39, 3341–51.

Pub. L. 99–180, title II, §202, Dec. 13, 1985, 99 Stat. 1146.

Pub. L. 98–411, title II, §202, Aug. 30, 1984, 98 Stat. 1558, repealed by Pub. L. 100–17, title I, §112(b)(2), Apr. 2, 1987, 101 Stat. 149.

Pub. L. 98–166, title II, §202, Nov. 28, 1983, 97 Stat. 1085.

Acceleration of Projects

Pub. L. 97–424, title I, §129, Jan. 6, 1983, 96 Stat. 2118, provided that: "The Secretary of Transportation shall by rule or regulation establish, as soon as practicable, alternative methods for processing projects under title 23, United States Code, so as to reduce the time required from the request for project approval through the completion of construction. In carrying out this section the Secretary shall utilize the knowledge and experience resulting from the demonstration project authorized by and carried out under section 141 of the Federal-Aid Highway Act of 1976 [Pub. L. 94–280, title I, §141, May 5, 1976, 90 Stat. 444, formerly set out as a note under former section 124 of this title]."
23 U.S.C. § 408 (2024) — Title 23: HIGHWAYS / Chapter 4: HIGHWAY SAFETY / Section 408: Agency accountability
Agency accountability
Status: in_force

(a) Triennial State Management Reviews.—

(1) In general.—Except as provided under paragraph (2), the Secretary shall conduct a review of each State highway safety program at least once every 3 years.

(2) Exceptions.—The Secretary may conduct reviews of the highway safety programs of the United States Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands as often as the Secretary determines to be appropriate.

(3) Components.—Reviews under this subsection shall include—

(A) a management evaluation of all grant programs funded under this chapter;

(B) an assessment of State data collection and evaluation relating to performance measures established by the Secretary;

(C) a comparison of State efforts under subparagraphs (A) and (B) to best practices and programs that have been evaluated for effectiveness; and

(D) the development of recommendations on how each State could—

(i) improve the management and oversight of its grant activities; and

(ii) provide a management and oversight plan for such grant programs.

(b) Recommendations Before Submission.—In order to provide guidance to State highway safety agencies on matters that should be addressed in the goals and initiatives of the State highway safety program before the program is submitted for review, the Secretary shall provide data-based recommendations to each State at least 90 days before the date on which the program is to be submitted for approval.

(c) State Program Review.—The Secretary shall—

(1) conduct a program improvement review of a highway safety program under this chapter of a State that does not make substantial progress over a 3-year period in meeting its priority program goals; and

(2) provide technical assistance and safety program requirements to be incorporated in the State highway safety program for any goal not achieved.

(d) Regional Harmonization.—The Secretary and the Inspector General of the Department of Transportation shall undertake an administrative review of the practices and procedures of the management reviews and program reviews of State highway safety programs under this chapter conducted by the regional offices of the National Highway Traffic Safety Administration and prepare a written report of best practices and procedures for use by the regional offices in conducting such reviews. The report shall be completed within 180 days after the date of enactment of this section.

(e) Best Practices Guidelines.—

(1) Uniform guidelines.—The Secretary shall issue uniform management review guidelines and program review guidelines based on the report under subsection (d). Each regional office shall use the guidelines in executing its State administrative review duties under this section.

(2) Publication.—The Secretary shall make publicly available on the Web site (or successor electronic facility) of the Administration the following documents upon their completion:

(A) The Secretary's management review guidelines and program review guidelines.

(B) All State highway safety programs submitted under this chapter.

(C) State annual accomplishment reports.

(D) The Administration's Summary Report of findings from Management Reviews and Improvement Plans.

(3) Reports to state highway safety agencies.—The Secretary may not make publicly available a program, report, or review under paragraph (2) that is directed to a State highway safety agency until after the date on which the program, report, or review is submitted to that agency under this chapter.

(f) Tracking Process.—The Secretary shall develop a process to identify and mitigate possible systemic issues across States and regional offices by reviewing oversight findings and recommended actions identified in triennial State management reviews.

(Added Pub. L. 109–59, title II, §2008(a), Aug. 10, 2005, 119 Stat. 1533, §412; amended Pub. L. 112–141, div. C, title I, §31107, July 6, 2012, 126 Stat. 755; Pub. L. 114–94, div. A, title IV, §4006, Dec. 4, 2015, 129 Stat. 1510; renumbered §408, Pub. L. 117–58, div. B, title IV, §24101(d)(1)(A), Nov. 15, 2021, 135 Stat. 784.)

Editorial Notes

Prior Provisions

A prior section 408, added Pub. L. 97–364, title I, §101(a), Oct. 25, 1982, 96 Stat. 1738; amended Pub. L. 98–363, §§4, 7, July 17, 1984, 98 Stat. 436, 438; Pub. L. 100–17, title II, §203(a), (b), Apr. 2, 1987, 101 Stat. 219; Pub. L. 109–59, title II, §2006(a), Aug. 10, 2005, 119 Stat. 1527, related to State traffic safety information system improvements, prior to repeal by Pub. L. 112–141, §3(a), div. C, title I, §31109(d), July 6, 2012, 126 Stat. 413, 756, effective Oct. 1, 2012.

Amendments

2021—Pub. L. 117–58, which directed the amendment of this chapter by renumbering section 412 "and" section 408, was executed by renumbering section 412 as this section as if "and" had read "as", to reflect the probable intent of Congress.
23 U.S.C. § 608 (2024) — Title 23: HIGHWAYS / Chapter 6: INFRASTRUCTURE FINANCE / Section 608: Funding
Funding
Status: in_force

(a) Funding.—

(1) Spending and borrowing authority.—Spending and borrowing authority for a fiscal year to enter into Federal credit instruments shall be promptly apportioned to the Secretary on a fiscal-year basis.

(2) Reestimates.—If the subsidy cost of a Federal credit instrument is reestimated, the cost increase or decrease of the reestimate shall be borne by, or benefit, the general fund of the Treasury, consistent with section 504(f) of the Congressional Budget Act of 1974 (2 U.S.C. 661c(f)).

(3) Rural set-aside.—

(A) In general.—Of the total amount of funds made available to carry out the TIFIA program for each fiscal year, not more than 10 percent shall be set aside for rural infrastructure projects or rural projects funds.

(B) Reobligation.—Any amounts set aside under subparagraph (A) that remain unobligated by June 1 of the fiscal year for which the amounts were set aside shall be available for obligation by the Secretary on projects other than rural infrastructure projects or rural projects funds.

(4) Limitation for certain projects.—

(A) Transit-oriented development projects.—For each fiscal year, the Secretary may use to carry out projects described in section 601(a)(12)(E) not more than 15 percent of the amounts made available to carry out the TIFIA program for that fiscal year.

(B) Airport-related projects.—The Secretary may use to carry out projects described in section 601(a)(12)(G)—

(i) for each fiscal year, not more than 15 percent of the amounts made available to carry out the TIFIA program under the Surface Transportation Reauthorization Act of 2021 for that fiscal year; and

(ii) for the period of fiscal years 2022 through 2026, not more than 15 percent of the unobligated carryover balances (as of October 1, 2021).

(5) Availability.—Amounts made available to carry out the TIFIA program shall remain available until expended.

(6) Administrative costs.—Of the amounts made available to carry out the TIFIA program, the Secretary may use not more than $10,000,000 for each of fiscal years 2022 through 2026 for the administration of the TIFIA program.

(b) Contract Authority.—

(1) In general.—Notwithstanding any other provision of law, execution of a term sheet by the Secretary of a Federal credit instrument that uses amounts made available under the TIFIA program shall impose on the United States a contractual obligation to fund the Federal credit investment.

(2) Availability.—Amounts made available to carry out the TIFIA program for a fiscal year shall be available for obligation on October 1 of the fiscal year.

(Added and amended Pub. L. 105–178, title I, §1503(a), (c), June 9, 1998, 112 Stat. 249, §188; Pub. L. 105–206, title IX, §9007(a), July 22, 1998, 112 Stat. 849; Pub. L. 108–88, §5(a)(10), Sept. 30, 2003, 117 Stat. 1115; Pub. L. 108–202, §5(a)(10), Feb. 29, 2004, 118 Stat. 481; Pub. L. 108–224, §4(a)(10), Apr. 30, 2004, 118 Stat. 629; Pub. L. 108–263, §4(a)(10), June 30, 2004, 118 Stat. 700; Pub. L. 108–280, §4(a)(10), July 30, 2004, 118 Stat. 879; Pub. L. 108–310, §5(a)(10), Sept. 30, 2004, 118 Stat. 1149; Pub. L. 109–14, §4(a)(10), May 31, 2005, 119 Stat. 327; Pub. L. 109–20, §4(a)(10), July 1, 2005, 119 Stat. 348; Pub. L. 109–35, §4(a)(10), July 20, 2005, 119 Stat. 381; Pub. L. 109–37, §4(a)(10), July 22, 2005, 119 Stat. 396; Pub. L. 109–40, §4(a)(10), July 28, 2005, 119 Stat. 413; renumbered §608 and amended Pub. L. 109–59, title I, §§1601(g), 1602(b)(5), (d), Aug. 10, 2005, 119 Stat. 1242, 1247; Pub. L. 112–141, div. A, title II, §2002, July 6, 2012, 126 Stat. 620; Pub. L. 114–94, div. A, title II, §2001(g), Dec. 4, 2015, 129 Stat. 1444; Pub. L. 117–58, div. A, title II, §12001(i)(1), Nov. 15, 2021, 135 Stat. 620.)

Editorial Notes

References in Text

The Surface Transportation Reauthorization Act of 2021, referred to in subsec. (a)(4)(B)(i), is Pub. L. 117–58, div. A, §10001, Nov. 15, 2021, 135 Stat. 443. For complete classification of this Act to the Code, see Short Title of 2021 Amendment note set out under section 101 of this title and Tables.

Amendments

2021—Subsec. (a)(4), (5). Pub. L. 117–58, §12001(i)(1)(A), (B), added par. (4) and redesignated former par. (4) as (5). Former par. (5) redesignated (6).

Subsec. (a)(6). Pub. L. 117–58, §12001(i)(1)(A), (C), redesignated par. (5) as (6), struck it out, and added a new par. (6). Prior to amendment, text read as follows: "Of the amounts made available to carry out the TIFIA program, the Secretary may use not more than $6,875,000 for fiscal year 2016, $7,081,000 for fiscal year 2017, $7,559,000 for fiscal year 2018, $8,195,000 for fiscal year 2019, and $8,441,000 for fiscal year 2020 for the administration of the TIFIA program."

2015—Pub. L. 114–94, §2001(g)(1), substituted "the TIFIA program" for "this chapter" wherever appearing.

Subsec. (a)(2). Pub. L. 114–94, §2001(g)(2)(A), inserted "of" after "504(f)".

Subsec. (a)(3)(A), (B). Pub. L. 114–94, §2001(g)(2)(B), inserted "or rural projects funds" after "rural infrastructure projects".

Subsec. (a)(4). Pub. L. 114–94, §2001(g)(2)(C), redesignated par. (5) as (4) and struck out former par. (4) which related to redistribution of authorized funding.

Subsec. (a)(5). Pub. L. 114–94, §2001(g)(2)(D), added par. (5). Former par. (5) redesignated (4).

Subsec. (a)(6). Pub. L. 114–94, §2001(g)(2)(C), struck out par. (6). Text read as follows: "Of the amounts made available to carry out this chapter, the Secretary may use not more than 0.50 percent for each fiscal year for the administration of this chapter."

2012—Pub. L. 112–141 amended section generally. Prior to amendment, section related to funding for fiscal years 2005 through 2009 and contract authority.

2005—Pub. L. 109–59, §1602(d), renumbered section 188 of this title as this section.

Pub. L. 109–59, §1601(g), reenacted section catchline without change and amended text generally, substituting provisions relating to funding for fiscal years 2005 through 2009 and contract authority, consisting of subsecs. (a) and (b), for provisions relating to funding for fiscal years 1999 through 2004 and for the period of Oct. 1, 2004, through July 30, 2005, contract authority, and limitations on credit amounts, consisting of subsecs. (a) to (c).

Subsec. (a)(1). Pub. L. 109–59, §1602(b)(5), substituted "this chapter" for "this subchapter".

Subsec. (a)(1)(G). Pub. L. 109–40, §4(a)(10)(A), added subpar. (G) and struck out former subpar. (G) which read as follows: "$106,849,340 for the period of October 1, 2004, through July 27, 2005."

Pub. L. 109–37, §4(a)(10)(A), added subpar. (G) and struck out former subpar. (G) which read as follows: "$105,300,000 for the period of October 1, 2004, through July 21, 2005."

Pub. L. 109–35, §4(a)(10)(A), added subpar. (G) and struck out former subpar. (G) which read as follows: "$104,000,000 for the period of October 1, 2004, through July 19, 2005."

Pub. L. 109–20, §4(a)(10)(A), added subpar. (G) and struck out former subpar. (G) which read as follows: "$97,500,000 for the period of October 1, 2004, through June 30, 2005."

Pub. L. 109–14, §4(a)(10)(A), added subpar. (G) and struck out former subpar. (G) which read as follows: "$86,666,667 for the period of October 1, 2004, through May 31, 2005."

Subsec. (a)(2). Pub. L. 109–40, §4(a)(10)(B), substituted "$1,660,000 for the period of October 1, 2004, through July 30, 2005" for "$1,643,836 for the period of October 1, 2004, through July 27, 2005".

Pub. L. 109–37, §4(a)(10)(B), substituted "$1,643,836 for the period of October 1, 2004, through July 27, 2005" for "$1,620,000 for the period of October 1, 2004, through July 21, 2005".

Pub. L. 109–35, §4(a)(10)(B), substituted "$1,620,000 for the period of October 1, 2004, through July 21, 2005" for "$1,600,000 for the period of October 1, 2004, through July 19, 2005".

Pub. L. 109–20, §4(a)(10)(B), substituted "$1,600,000 for the period of October 1, 2004, through July 19, 2005" for "$1,500,000 for the period of October 1, 2004, through June 30, 2005".

Pub. L. 109–14, §4(a)(10)(B), substituted "$1,500,000 for the period of October 1, 2004, through June 30, 2005" for "$1,333,333 for the period of October 1, 2004, through May 31, 2005".

Subsec. (a)(3). Pub. L. 109–59, §1602(b)(5), substituted "administration of this chapter" for "administration of this subchapter".

Subsec. (b)(1). Pub. L. 109–59, §1602(b)(5), substituted "this chapter" for "this subchapter".

Subsec. (c). Pub. L. 109–40, §4(a)(10)(C), substituted "$2,158,000,000" for "$2,136,986,800" in item relating to fiscal year 2005 in table.

Pub. L. 109–37, §4(a)(10)(C), substituted "$2,136,986,800" for "$2,106,000,000" in item relating to fiscal year 2005 in table.

Pub. L. 109–35, §4(a)(10)(C), substituted "$2,106,000,000" for "$2,080,000,000" in item relating to fiscal year 2005 in table.

Pub. L. 109–20, §4(a)(10)(C), substituted "$2,080,000,000" for "$1,950,000,000" in item relating to fiscal year 2005 in table.

Pub. L. 109–14, §4(a)(10)(C), substituted "$1,950,000,000" for "$1,733,333,333" in item relating to fiscal year 2005 in table.

2004—Subsec. (a)(1)(F). Pub. L. 108–280, §4(a)(10)(A), added subpar. (F) and struck out former subpar. (F) which read as follows: "$116,666,667 for the period of October 1, 2003, through July 31, 2004."

Pub. L. 108–263, §4(a)(10)(A), added subpar. (F) and struck out former subpar. (F) which read as follows: "$105,000,000 for the period of October 1, 2003, through June 30, 2004."

Pub. L. 108–224, §4(a)(10)(A), added subpar. (F) and struck out former subpar. (F) which read as follows: "$81,666,666 for the period of October 1, 2003, through April 30, 2004."

Pub. L. 108–202, §5(a)(10)(A), added subpar. (F) and struck out former subpar. (F) which read as follows: "$58,333,333 for the period of October 1, 2003, through February 29, 2004."

Subsec. (a)(1)(G). Pub. L. 108–310, §5(a)(10)(A), added subpar. (G).

Subsec. (a)(2). Pub. L. 108–310, §5(a)(10)(B), inserted "and $1,333,333 for the period of October 1, 2004, through May 31, 2005" before period at end.

Pub. L. 108–280, §4(a)(10)(B), struck out "2003 and $1,666,667 for the period of October 1, 2003, through July 31," before "2004."

Pub. L. 108–263, §4(a)(10)(B), substituted "$1,666,667 for the period of October 1, 2003, through July 31, 2004" for "$1,500,000 for the period of October 1, 2003, through June 30, 2004".

Pub. L. 108–224, §4(a)(10)(B), substituted "$1,500,000 for the period of October 1, 2003, through June 30, 2004" for "$1,166,667 for the period of October 1, 2003, through April 30, 2004".

Pub. L. 108–202, §5(a)(10)(B), substituted "$1,166,667 for the period of October 1, 2003, through April 30, 2004" for "$833,333 for the period of October 1, 2003, through February 29, 2004".

Subsec. (c). Pub. L. 108–310, §5(a)(10)(C), substituted "2005" for "2004" in introductory provisions and inserted item in table relating to fiscal year 2005.

Pub. L. 108–280, §4(a)(10)(C), substituted "$2,600,000,000" for "$2,166,666,667" in item relating to fiscal year 2004 in table.

Pub. L. 108–263, §4(a)(10)(C), substituted "$2,166,666,667" for "$1,950,000,000" in item relating to fiscal year 2004 in table.

Pub. L. 108–224, §4(a)(10)(C), substituted "$1,950,000,000" for "$1,516,666,667" in item relating to fiscal year 2004 in table.

Pub. L. 108–202, §5(a)(10)(C), substituted "$1,516,666,667" for "$1,083,333,333" in item relating to fiscal year 2004 in table.

2003—Subsec. (a)(1)(F). Pub. L. 108–88, §5(a)(10)(A), added subpar. (F).

Subsec. (a)(2). Pub. L. 108–88, §5(a)(10)(B), inserted "and $833,333 for the period of October 1, 2003, through February 29, 2004" after "2003".

Subsec. (c). Pub. L. 108–88, §5(a)(10)(C), substituted "2004" for "2003" and inserted item in table relating to fiscal year 2004.

1998—Subsec. (a)(2). Pub. L. 105–178, §1503(c)(1), as added by Pub. L. 105–206, §9007(a), substituted "1999" for "1998".

Subsec. (c). Pub. L. 105–178, §1503(c)(2), as added by Pub. L. 105–206, §9007(a), substituted "1999" for "1998" in introductory provisions, and substituted table for former table which read as follows:

 

"Fiscal year:Maximum amount of credit:

 1998 
$1,200,000,000 

 1999 
$1,200,000,000 

 2000 
$1,800,000,000 

 2001 
$1,800,000,000 

 2002 
$2,300,000,000 

 2003 
$2,300,000,000."

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–58 effective Oct. 1, 2021, see section 10003 of Pub. L. 117–58, set out as a note under section 101 of this title.

Effective Date of 2015 Amendment

Amendment by Pub. L. 114–94 effective Oct. 1, 2015, see section 1003 of Pub. L. 114–94, set out as a note under section 5313 of Title 5, Government Organization and Employees.

Effective Date of 2012 Amendment

Amendment by Pub. L. 112–141 effective Oct. 1, 2012, see section 3(a) of Pub. L. 112–141, set out as an Effective and Termination Dates of 2012 Amendment note under section 101 of this title.

Effective Date of 1998 Amendment

Title IX of Pub. L. 105–206 effective simultaneously with enactment of Pub. L. 105–178 and to be treated as included in Pub. L. 105–178 at time of enactment, and provisions of Pub. L. 105–178, as in effect on day before July 22, 1998, that are amended by title IX of Pub. L. 105–206 to be treated as not enacted, see section 9016 of Pub. L. 105–206, set out as a note under section 101 of this title.
23 U.S.C. § 124 (2024) — Title 23: HIGHWAYS / Chapter 1: FEDERAL-AID HIGHWAYS / Section 124: Bridge investment program
Bridge investment program
Status: in_force

(a) Definitions.—In this section:

(1) Eligible project.—

(A) In general.—The term "eligible project" means a project to replace, rehabilitate, preserve, or protect 1 or more bridges on the National Bridge Inventory under section 144(b).

(B) Inclusions.—The term "eligible project" includes—

(i) a bundle of projects described in subparagraph (A), regardless of whether the bundle of projects meets the requirements of section 144(j)(5); and

(ii) a project to replace or rehabilitate culverts for the purpose of improving flood control and improved habitat connectivity for aquatic species.

(2) Large project.—The term "large project" means an eligible project with total eligible project costs of greater than $100,000,000.

(3) Program.—The term "program" means the bridge investment program established by subsection (b)(1).

(b) Establishment of Bridge Investment Program.—

(1) In general.—There is established a bridge investment program to provide financial assistance for eligible projects under this section.

(2) Goals.—The goals of the program shall be—

(A) to improve the safety, efficiency, and reliability of the movement of people and freight over bridges;

(B) to improve the condition of bridges in the United States by reducing—

(i) the number of bridges—

(I) in poor condition; or

(II) in fair condition and at risk of falling into poor condition within the next 3 years;

(ii) the total person miles traveled over bridges—

(I) in poor condition; or

(II) in fair condition and at risk of falling into poor condition within the next 3 years;

(iii) the number of bridges that—

(I) do not meet current geometric design standards; or

(II) cannot meet the load and traffic requirements typical of the regional transportation network; and

(iv) the total person miles traveled over bridges that—

(I) do not meet current geometric design standards; or

(II) cannot meet the load and traffic requirements typical of the regional transportation network; and

(C) to provide financial assistance that leverages and encourages non-Federal contributions from sponsors and stakeholders involved in the planning, design, and construction of eligible projects.

(c) Grant Authority.—

(1) In general.—In carrying out the program, the Secretary may award grants, on a competitive basis, in accordance with this section.

(2) Grant amounts.—Except as otherwise provided, a grant under the program shall be—

(A) in the case of a large project, in an amount that is—

(i) adequate to fully fund the project (in combination with other financial resources identified in the application); and

(ii) not less than $50,000,000; and

(B) in the case of any other eligible project, in an amount that is—

(i) adequate to fully fund the project (in combination with other financial resources identified in the application); and

(ii) not less than $2,500,000.

(3) Maximum amount.—Except as otherwise provided, for an eligible project receiving assistance under the program, the amount of assistance provided by the Secretary under this section, as a share of eligible project costs, shall be—

(A) in the case of a large project, not more than 50 percent; and

(B) in the case of any other eligible project, not more than 80 percent.

(4) Federal share.—

(A) Maximum federal involvement.—Federal assistance other than a grant under the program may be used to satisfy the non-Federal share of the cost of a project for which a grant is made, except that the total Federal assistance provided for a project receiving a grant under the program may not exceed the Federal share for the project under section 120.

(B) Off-system bridges.—In the case of an eligible project for an off-system bridge (as defined in section 133(f)(1))—

(i) Federal assistance other than a grant under the program may be used to satisfy the non-Federal share of the cost of a project; and

(ii) notwithstanding subparagraph (A), the total Federal assistance provided for the project shall not exceed 90 percent of the total eligible project costs.

(C) Federal land management agencies and tribal governments.—Notwithstanding any other provision of law, Federal funds other than Federal funds made available under this section may be used to pay the remaining share of the cost of a project under the program by a Federal land management agency or a Tribal government or consortium of Tribal governments.

(5) Considerations.—

(A) In general.—In awarding grants under the program, the Secretary shall consider—

(i) in the case of a large project, the ratings assigned under subsection (g)(5)(A);

(ii) in the case of an eligible project other than a large project, the quality rating assigned under subsection (f)(3)(A)(ii);

(iii) the average daily person and freight throughput supported by the eligible project;

(iv) the number and percentage of bridges within the same State as the eligible project that are in poor condition;

(v) the extent to which the eligible project demonstrates cost savings by bundling multiple bridge projects;

(vi) in the case of an eligible project of a Federal land management agency, the extent to which the grant would reduce a Federal liability or Federal infrastructure maintenance backlog;

(vii) geographic diversity among grant recipients, including the need for a balance between the needs of rural and urban communities; and

(viii) the extent to which a bridge that would be assisted with a grant—

(I) is, without that assistance—

(aa) at risk of falling into or remaining in poor condition; or

(bb) in fair condition and at risk of falling into poor condition within the next 3 years;

(II) does not meet current geometric design standards based on—

(aa) the current use of the bridge; or

(bb) load and traffic requirements typical of the regional corridor or local network in which the bridge is located; or

(III) does not meet current seismic design standards.

(B) Requirement.—The Secretary shall—

(i) give priority to an application for an eligible project that is located within a State for which—

(I) 2 or more applications for eligible projects within the State were submitted for the current fiscal year and an average of 2 or more applications for eligible projects within the State were submitted in prior fiscal years of the program; and

(II) fewer than 2 grants have been awarded for eligible projects within the State under the program;

(ii) during the period of fiscal years 2022 through 2026, for each State described in clause (i), select—

(I) not fewer than 1 large project that the Secretary determines is justified under the evaluation under subsection (g)(4); or

(II) 2 eligible projects that are not large projects that the Secretary determines are justified under the evaluation under subsection (f)(3); and

(iii) not be required to award a grant for an eligible project that the Secretary does not determine is justified under an evaluation under subsection (f)(3) or (g)(4).

(6) Culvert limitation.—Not more than 5 percent of the amounts made available for each fiscal year for grants under the program may be used for eligible projects that consist solely of culvert replacement or rehabilitation.

(d) Eligible Entity.—The Secretary may make a grant under the program to any of the following:

(1) A State or a group of States.

(2) A metropolitan planning organization that serves an urbanized area (as designated by the Bureau of the Census) with a population of over 200,000.

(3) A unit of local government or a group of local governments.

(4) A political subdivision of a State or local government.

(5) A special purpose district or public authority with a transportation function.

(6) A Federal land management agency.

(7) A Tribal government or a consortium of Tribal governments.

(8) A multistate or multijurisdictional group of entities described in paragraphs (1) through (7).

(e) Eligible Project Requirements.—The Secretary may make a grant under the program only to an eligible entity for an eligible project that—

(1) in the case of a large project, the Secretary recommends for funding in the annual report on funding recommendations under subsection (g)(6), except as provided in subsection (g)(1)(B);

(2) is reasonably expected to begin construction not later than 18 months after the date on which funds are obligated for the project; and

(3) is based on the results of preliminary engineering.

(f) Competitive Process and Evaluation of Eligible Projects Other Than Large Projects.—

(1) Competitive process.—

(A) In general.—The Secretary shall—

(i) for the first fiscal year for which funds are made available for obligation under the program, not later than 60 days after the date on which the template under subparagraph (B)(i) is developed, and in subsequent fiscal years, not later than 60 days after the date on which amounts are made available for obligation under the program, solicit grant applications for eligible projects other than large projects; and

(ii) not later than 120 days after the date on which the solicitation under clause (i) expires, conduct evaluations under paragraph (3).

(B) Requirements.—In carrying out subparagraph (A), the Secretary shall—

(i) develop a template for applicants to use to summarize project needs and benefits, including benefits described in paragraph (3)(B)(i); and

(ii) enable applicants to use data from the National Bridge Inventory under section 144(b) to populate templates described in clause (i), as applicable.

(2) Applications.—An eligible entity shall submit to the Secretary an application at such time, in such manner, and containing such information as the Secretary may require.

(3) Evaluation.—

(A) In general.—Prior to providing a grant under this subsection, the Secretary shall—

(i) conduct an evaluation of each eligible project for which an application is received under this subsection; and

(ii) assign a quality rating to the eligible project on the basis of the evaluation under clause (i).

(B) Requirements.—In carrying out an evaluation under subparagraph (A), the Secretary shall—

(i) consider information on project benefits submitted by the applicant using the template developed under paragraph (1)(B)(i), including whether the project will generate, as determined by the Secretary—

(I) costs avoided by the prevention of closure or reduced use of the bridge to be improved by the project;

(II) in the case of a bundle of projects, benefits from executing the projects as a bundle compared to as individual projects;

(III) safety benefits, including the reduction of accidents and related costs;

(IV) person and freight mobility benefits, including congestion reduction and reliability improvements;

(V) national or regional economic benefits;

(VI) benefits from long-term resiliency to extreme weather events, flooding, or other natural disasters;

(VII) benefits from protection (as described in section 133(b)(10)), including improving seismic or scour protection;

(VIII) environmental benefits, including wildlife connectivity;

(IX) benefits to nonvehicular and public transportation users;

(X) benefits of using—

(aa) innovative design and construction techniques; or

(bb) innovative technologies; or

(XI) reductions in maintenance costs, including, in the case of a federally-owned bridge, cost savings to the Federal budget; and

(ii) consider whether and the extent to which the benefits, including the benefits described in clause (i), are more likely than not to outweigh the total project costs.

(g) Competitive Process, Evaluation, and Annual Report for Large Projects.—

(1) In general.—

(A) Applications.—The Secretary shall establish an annual date by which an eligible entity submitting an application for a large project shall submit to the Secretary such information as the Secretary may require, including information described in paragraph (2), in order for a large project to be considered for a recommendation by the Secretary for funding in the next annual report under paragraph (6).

(B) First fiscal year.—Notwithstanding subparagraph (A), for the first fiscal year for which funds are made available for obligation for grants under the program, the Secretary may establish a date by which an eligible entity submitting an application for a large project shall submit to the Secretary such information as the Secretary may require, including information described in paragraph (2), in order for a large project to be considered for immediate execution of a grant agreement.

(2) Information required.—The information referred to in paragraph (1) includes—

(A) all necessary information required for the Secretary to evaluate the large project; and

(B) information sufficient for the Secretary to determine that—

(i) the large project meets the applicable requirements under this section; and

(ii) there is a reasonable likelihood that the large project will continue to meet the requirements under this section.

(3) Determination; notice.—On making a determination that information submitted to the Secretary under paragraph (1) is sufficient, the Secretary shall provide a written notice of that determination to—

(A) the eligible entity that submitted the application;

(B) the Committee on Environment and Public Works of the Senate; and

(C) the Committee on Transportation and Infrastructure of the House of Representatives.

(4) Evaluation.—The Secretary may recommend a large project for funding in the annual report under paragraph (6), or, in the case of the first fiscal year for which funds are made available for obligation for grants under the program, immediately execute a grant agreement for a large project, only if the Secretary evaluates the proposed project and determines that the project is justified because the project—

(A) addresses a need to improve the condition of the bridge, as determined by the Secretary, consistent with the goals of the program under subsection (b)(2);

(B) will generate, as determined by the Secretary—

(i) costs avoided by the prevention of closure or reduced use of the bridge to be improved by the project;

(ii) in the case of a bundle of projects, benefits from executing the projects as a bundle compared to as individual projects;

(iii) safety benefits, including the reduction of accidents and related costs;

(iv) person and freight mobility benefits, including congestion reduction and reliability improvements;

(v) national or regional economic benefits;

(vi) benefits from long-term resiliency to extreme weather events, flooding, or other natural disasters;

(vii) benefits from protection (as described in section 133(b)(10)), including improving seismic or scour protection;

(viii) environmental benefits, including wildlife connectivity;

(ix) benefits to nonvehicular and public transportation users;

(x) benefits of using—

(I) innovative design and construction techniques; or

(II) innovative technologies; or

(xi) reductions in maintenance costs, including, in the case of a federally-owned bridge, cost savings to the Federal budget;

(C) is cost effective based on an analysis of whether the benefits and avoided costs described in subparagraph (B) are expected to outweigh the project costs;

(D) is supported by other Federal or non-Federal financial commitments or revenues adequate to fund ongoing maintenance and preservation; and

(E) is consistent with the objectives of an applicable asset management plan of the project sponsor, including a State asset management plan under section 119(e) in the case of a project on the National Highway System that is sponsored by a State.

(5) Ratings.—

(A) In general.—The Secretary shall develop a methodology to evaluate and rate a large project on a 5-point scale (the points of which include "high", "medium-high", "medium", "medium-low", and "low") for each of—

(i) paragraph (4)(B);

(ii) paragraph (4)(C); and

(iii) paragraph (4)(D).

(B) Requirement.—To be considered justified and receive a recommendation for funding in the annual report under paragraph (6), a project shall receive a rating of not less than "medium" for each rating required under subparagraph (A).

(C) Interim methodology.—In the first fiscal year for which funds are made available for obligation for grants under the program, the Secretary may establish an interim methodology to evaluate and rate a large project for each of—

(i) paragraph (4)(B);

(ii) paragraph (4)(C); and

(iii) paragraph (4)(D).

(6) Annual report on funding recommendations for large projects.—

(A) In general.—Not later than the first Monday in February of each year, the Secretary shall submit to the Committees on Transportation and Infrastructure and Appropriations of the House of Representatives and the Committees on Environment and Public Works and Appropriations of the Senate a report that includes—

(i) a list of large projects that have requested a recommendation for funding under a new grant agreement from funds anticipated to be available to carry out this subsection in the next fiscal year;

(ii) the evaluation under paragraph (4) and ratings under paragraph (5) for each project referred to in clause (i);

(iii) the grant amounts that the Secretary recommends providing to large projects in the next fiscal year, including—

(I) scheduled payments under previously signed multiyear grant agreements under subsection (j);

(II) payments for new grant agreements, including single-year grant agreements and multiyear grant agreements; and

(III) a description of how amounts anticipated to be available for the program from the Highway Trust Fund for that fiscal year will be distributed; and

(iv) for each project for which the Secretary recommends a new multiyear grant agreement under subsection (j), the proposed payout schedule for the project.

(B) Limitations.—

(i) In general.—The Secretary shall not recommend in an annual report under this paragraph a new multiyear grant agreement provided from funds from the Highway Trust Fund unless the Secretary determines that the project can be completed using funds that are anticipated to be available from the Highway Trust Fund in future fiscal years.

(ii) General fund projects.—The Secretary—

(I) may recommend for funding in an annual report under this paragraph a large project using funds from the general fund of the Treasury; but

(II) shall not execute a grant agreement for that project unless—

(aa) funds other than from the Highway Trust Fund have been made available for the project; and

(bb) the Secretary determines that the project can be completed using funds other than from the Highway Trust Fund that are anticipated to be available in future fiscal years.

(C) Considerations.—In selecting projects to recommend for funding in the annual report under this paragraph, or, in the case of the first fiscal year for which funds are made available for obligation for grants under the program, projects for immediate execution of a grant agreement, the Secretary shall—

(i) consider the amount of funds available in future fiscal years for multiyear grant agreements as described in subparagraph (B); and

(ii) assume the availability of funds in future fiscal years for multiyear grant agreements that extend beyond the period of authorization based on the amount made available for large projects under the program in the last fiscal year of the period of authorization.

(D) Project diversity.—In selecting projects to recommend for funding in the annual report under this paragraph, the Secretary shall ensure diversity among projects recommended based on—

(i) the amount of the grant requested; and

(ii) grants for an eligible project for 1 bridge compared to an eligible project that is a bundle of projects.

(h) Eligible Project Costs.—A grant received for an eligible project under the program may be used for—

(1) development phase activities, including planning, feasibility analysis, revenue forecasting, environmental review, preliminary engineering and design work, and other preconstruction activities;

(2) construction, reconstruction, rehabilitation, acquisition of real property (including land related to the project and improvements to the land), environmental mitigation, construction contingencies, acquisition of equipment, and operational improvements directly related to improving system performance; and

(3) expenses related to the protection (as described in section 133(b)(10)) of a bridge, including seismic or scour protection.

(i) TIFIA Program.—On the request of an eligible entity carrying out an eligible project, the Secretary may use amounts awarded to the entity to pay subsidy and administrative costs necessary to provide to the entity Federal credit assistance under chapter 6 with respect to the eligible project for which the grant was awarded.

(j) Multiyear Grant Agreements for Large Projects.—

(1) In general.—A large project that receives a grant under the program in an amount of not less than $100,000,000 may be carried out through a multiyear grant agreement in accordance with this subsection.

(2) Requirements.—A multiyear grant agreement for a large project described in paragraph (1) shall—

(A) establish the terms of participation by the Federal Government in the project;

(B) establish the maximum amount of Federal financial assistance for the project in accordance with paragraphs (3) and (4) of subsection (c);

(C) establish a payout schedule for the project that provides for disbursement of the full grant amount by not later than 4 fiscal years after the fiscal year in which the initial amount is provided;

(D) determine the period of time for completing the project, even if that period extends beyond the period of an authorization; and

(E) attempt to improve timely and efficient management of the project, consistent with all applicable Federal laws (including regulations).

(3) Special financial rules.—

(A) In general.—A multiyear grant agreement under this subsection—

(i) shall obligate an amount of available budget authority specified in law; and

(ii) may include a commitment, contingent on amounts to be specified in law in advance for commitments under this paragraph, to obligate an additional amount from future available budget authority specified in law.

(B) Statement of contingent commitment.—The agreement shall state that the contingent commitment is not an obligation of the Federal Government.

(C) Interest and other financing costs.—

(i) In general.—Interest and other financing costs of carrying out a part of the project within a reasonable time shall be considered a cost of carrying out the project under a multiyear grant agreement, except that eligible costs may not be more than the cost of the most favorable financing terms reasonably available for the project at the time of borrowing.

(ii) Certification.—The applicant shall certify to the Secretary that the applicant has shown reasonable diligence in seeking the most favorable financing terms.

(4) Advance payment.—Notwithstanding any other provision of law, an eligible entity carrying out a large project under a multiyear grant agreement—

(A) may use funds made available to the eligible entity under this title for eligible project costs of the large project until the amount specified in the multiyear grant agreement for the project for that fiscal year becomes available for obligation; and

(B) if the eligible entity uses funds as described in subparagraph (A), the funds used shall be reimbursed from the amount made available under the multiyear grant agreement for the project.

(k) Undertaking Parts of Projects in Advance Under Letters of No Prejudice.—

(1) In general.—The Secretary may pay to an applicant all eligible project costs under the program, including costs for an activity for an eligible project incurred prior to the date on which the project receives funding under the program if—

(A) before the applicant carries out the activity, the Secretary approves through a letter to the applicant the activity in the same manner as the Secretary approves other activities as eligible under the program;

(B) a record of decision, a finding of no significant impact, or a categorical exclusion under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) has been issued for the eligible project; and

(C) the activity is carried out without Federal assistance and in accordance with all applicable procedures and requirements.

(2) Interest and other financing costs.—

(A) In general.—For purposes of paragraph (1), the cost of carrying out an activity for an eligible project includes the amount of interest and other financing costs, including any interest earned and payable on bonds, to the extent interest and other financing costs are expended in carrying out the activity for the eligible project, except that interest and other financing costs may not be more than the cost of the most favorable financing terms reasonably available for the eligible project at the time of borrowing.

(B) Certification.—The applicant shall certify to the Secretary that the applicant has shown reasonable diligence in seeking the most favorable financing terms under subparagraph (A).

(3) No obligation or influence on recommendations.—An approval by the Secretary under paragraph (1)(A) shall not—

(A) constitute an obligation of the Federal Government; or

(B) alter or influence any evaluation under subsection (f)(3)(A)(i) or (g)(4) or any recommendation by the Secretary for funding under the program.

(l) Federally-owned Bridges.—

(1) Divestiture consideration.—In the case of a bridge owned by a Federal land management agency for which that agency applies for a grant under the program, the agency—

(A) shall consider options to divest the bridge to a State or local entity after completion of the project; and

(B) may apply jointly with the State or local entity to which the bridge may be divested.

(2) Treatment.—Notwithstanding any other provision of law, section 129 shall apply to a bridge that was previously owned by a Federal land management agency and has been transferred to a non-Federal entity under paragraph (1) in the same manner as if the bridge was never federally owned.

(m) Treatment of Projects.—Notwithstanding any other provision of law, a project assisted under this section shall be treated as a project on a Federal-aid highway under this chapter.

(n) Congressional Notification.—Not later than 30 days before making a grant for an eligible project under the program, the Secretary shall submit to the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Environment and Public Works of the Senate a written notification of the proposed grant that includes—

(1) an evaluation and justification for the eligible project; and

(2) the amount of the proposed grant.

(o) Reports.—

(1) Annual report.—Not later than August 1 of each fiscal year, the Secretary shall make available on the website of the Department of Transportation an annual report that lists each eligible project for which a grant has been provided under the program during the fiscal year.

(2) GAO assessment and report.—Not later than 3 years after the date of enactment of the Surface Transportation Reauthorization Act of 2021, the Comptroller General of the United States shall—

(A) conduct an assessment of the administrative establishment, solicitation, selection, and justification process with respect to the funding of grants under the program; and

(B) submit to the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Environment and Public Works of the Senate a report that describes—

(i) the adequacy and fairness of the process under which each eligible project that received a grant under the program was selected; and

(ii) the justification and criteria used for the selection of each eligible project.

(p) Limitation.—

(1) Large projects.—Of the amounts made available out of the Highway Trust Fund (other than the Mass Transit Account) to carry out this section for each of fiscal years 2022 through 2026, not less than 50 percent, in aggregate, shall be used for large projects.

(2) Unutilized amounts.—If, in fiscal year 2026, the Secretary determines that grants under the program will not allow for the requirement under paragraph (1) to be met, the Secretary shall use the unutilized amounts to make other grants under the program during that fiscal year.

(q) Tribal Transportation Facility Bridge Set Aside.—

(1) In general.—Of the amounts made available from the Highway Trust Fund (other than the Mass Transit Account) for a fiscal year to carry out this section, the Secretary shall use, to carry out section 202(d)—

(A) $16,000,000 for fiscal year 2022;

(B) $18,000,000 for fiscal year 2023;

(C) $20,000,000 for fiscal year 2024;

(D) $22,000,000 for fiscal year 2025; and

(E) $24,000,000 for fiscal year 2026.

(2) Treatment.—For purposes of section 201, funds made available for section 202(d) under paragraph (1) shall be considered to be part of the tribal transportation program.

(Added Pub. L. 117–58, div. A, title I, §11118(a), Nov. 15, 2021, 135 Stat. 484.)

Editorial Notes

References in Text

The National Environmental Policy Act of 1969, referred to in subsec. (k)(1)(B), is Pub. L. 91–190, Jan. 1, 1970, 83 Stat. 852, which is classified generally to chapter 55 (§4321 et seq.) of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 4321 of Title 42 and Tables.

The date of enactment of the Surface Transportation Reauthorization Act of 2021, referred to in subsec. (o)(2), is the date of enactment of div. A of Pub. L. 117–58, which was approved Nov. 15, 2021.

Prior Provisions

A prior section 124, Pub. L. 85–767, Aug. 27, 1958, 72 Stat. 901; Pub. L. 95–599, title I, §118, Nov. 6, 1978, 92 Stat. 2699; Pub. L. 105–178, title I, §§1212(a)(2)(A)(i), 1226(c), June 9, 1998, 112 Stat. 193; Pub. L. 105–206, title IX, §9003(a), July 22, 1998, 112 Stat. 837, related to advances to States, prior to repeal by Pub. L. 112–141, §3(a), div. A, title I, §1519(b)(1)(A), July 6, 2012, 126 Stat. 413, 575, effective Oct. 1, 2012.

Statutory Notes and Related Subsidiaries

Effective Date

Section effective Oct. 1, 2021, see section 10003 of Pub. L. 117–58, set out as an Effective Date of 2021 Amendment note under section 101 of this title.
23 U.S.C. § 327 (2024) — Title 23: HIGHWAYS / Chapter 3: GENERAL PROVISIONS / Section 327: Surface transportation project delivery program
Surface transportation project delivery program
Status: in_force

(a) Establishment.—

(1) In general.—The Secretary shall carry out a surface transportation project delivery program (referred to in this section as the "program").

(2) Assumption of responsibility.—

(A) In general.—Subject to the other provisions of this section, with the written agreement of the Secretary and a State, which may be in the form of a memorandum of understanding, the Secretary may assign, and the State may assume, the responsibilities of the Secretary with respect to one or more highway projects within the State under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).

(B) Additional responsibility.—If a State assumes responsibility under subparagraph (A)—

(i) the Secretary may assign to the State, and the State may assume, all or part of the responsibilities of the Secretary for environmental review, consultation, or other action required under any Federal environmental law pertaining to the review or approval of a specific project;

(ii) at the request of the State, the Secretary may also assign to the State, and the State may assume, the responsibilities of the Secretary with respect to 1 or more railroad, public transportation, or multimodal projects within the State under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.);

(iii) in a State that has assumed the responsibilities of the Secretary under clause (ii), a recipient of assistance under chapter 53 of title 49 may request that the Secretary maintain the responsibilities of the Secretary with respect to 1 or more public transportation projects within the State under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.); but

(iv) the Secretary may not assign—

(I) any responsibility imposed on the Secretary by section 134 or 135 or section 5303 or 5304 of title 49; or

(II) responsibility for any conformity determination required under section 176 of the Clean Air Act (42 U.S.C. 7506).

(C) Procedural and substantive requirements.—A State shall assume responsibility under this section subject to the same procedural and substantive requirements as would apply if that responsibility were carried out by the Secretary.

(D) Federal responsibility.—Any responsibility of the Secretary not explicitly assumed by the State by written agreement under this section shall remain the responsibility of the Secretary.

(E) No effect on authority.—Nothing in this section preempts or interferes with any power, jurisdiction, responsibility, or authority of an agency, other than the Department of Transportation, under applicable law (including regulations) with respect to a project.

(F) Preservation of flexibility.—The Secretary may not require a State, as a condition of participation in the program, to forego project delivery methods that are otherwise permissible for projects.

(G) Legal fees.—A State assuming the responsibilities of the Secretary under this section for a specific project may use funds apportioned to the State under section 104(b)(2) for attorneys' fees directly attributable to eligible activities associated with the project, including the payment of fees awarded under section 2412 of title 28.

(b) State Participation.—

(1) Participating states.—All States are eligible to participate in the program.

(2) Application.—Not later than 270 days after the date on which amendments to this section by the MAP-21 take effect, the Secretary shall amend, as appropriate, regulations that establish requirements relating to information required to be contained in any application of a State to participate in the program, including, at a minimum—

(A) the projects or classes of projects for which the State anticipates exercising the authority that may be granted under the program;

(B) verification of the financial resources necessary to carry out the authority that may be granted under the program; and

(C) evidence of the notice and solicitation of public comment by the State relating to participation of the State in the program, including copies of comments received from that solicitation.

(3) Public notice.—

(A) In general.—Each State that submits an application under this subsection shall give notice of the intent of the State to participate in the program not later than 30 days before the date of submission of the application.

(B) Method of notice and solicitation.—The State shall provide notice and solicit public comment under this paragraph by publishing the complete application of the State in accordance with the appropriate public notice law of the State.

(4) Selection criteria.—The Secretary may approve the application of a State under this section only if—

(A) the regulatory requirements under paragraph (2) have been met;

(B) the Secretary determines that the State has the capability, including financial and personnel, to assume the responsibility; and

(C) the head of the State agency having primary jurisdiction over highway matters enters into a written agreement with the Secretary described in subsection (c).

(5) Other federal agency views.—If a State applies to assume a responsibility of the Secretary that would have required the Secretary to consult with another Federal agency, the Secretary shall solicit the views of the Federal agency before approving the application.

(c) Written Agreement.—A written agreement under this section shall—

(1) be executed by the Governor or the top-ranking transportation official in the State who is charged with responsibility for highway construction;

(2) be in such form as the Secretary may prescribe;

(3) provide that the State—

(A) agrees to assume all or part of the responsibilities of the Secretary described in subsection (a);

(B) expressly consents, on behalf of the State, to accept the jurisdiction of the Federal courts for the compliance, discharge, and enforcement of any responsibility of the Secretary assumed by the State;

(C) certifies that State laws (including regulations) are in effect that—

(i) authorize the State to take the actions necessary to carry out the responsibilities being assumed; and

(ii) are comparable to section 552 of title 5, including providing that any decision regarding the public availability of a document under those State laws is reviewable by a court of competent jurisdiction; and

(D) agrees to maintain the financial resources necessary to carry out the responsibilities being assumed;

(4) require the State to provide to the Secretary any information the Secretary reasonably considers necessary to ensure that the State is adequately carrying out the responsibilities assigned to the State;

(5) except as provided under paragraph (7), have a term of not more than 5 years;

(6) be renewable; and

(7) for any State that has participated in a program under this section (or under a predecessor program) for at least 10 years, have a term of 10 years.

(d) Jurisdiction.—

(1) In general.—The United States district courts shall have exclusive jurisdiction over any civil action against a State for failure to carry out any responsibility of the State under this section.

(2) Legal standards and requirements.—A civil action under paragraph (1) shall be governed by the legal standards and requirements that would apply in such a civil action against the Secretary had the Secretary taken the actions in question.

(3) Intervention.—The Secretary shall have the right to intervene in any action described in paragraph (1).

(e) Effect of Assumption of Responsibility.—A State that assumes responsibility under subsection (a)(2) shall be solely responsible and solely liable for carrying out, in lieu of and without further approval of the Secretary, the responsibilities assumed under subsection (a)(2), until the program is terminated as provided in subsection (j).

(f) Limitations on Agreements.—Nothing in this section permits a State to assume any rulemaking authority of the Secretary under any Federal law.

(g) Audits.—

(1) In general.—To ensure compliance by a State with any agreement of the State under subsection (c) (including compliance by the State with all Federal laws for which responsibility is assumed under subsection (a)(2)), for each State participating in the program under this section, the Secretary shall—

(A) not later than 180 days after the date of execution of the agreement, meet with the State to review implementation of the agreement and discuss plans for the first annual audit;

(B) conduct annual audits during each of the first 4 years of State participation;

(C) in the case of an agreement period of greater than 5 years pursuant to subsection (c)(7), conduct an audit covering the first 5 years of the agreement period; and

(D) ensure that the time period for completing an audit, from initiation to completion (including public comment and responses to those comments), does not exceed 180 days.

(2) Public availability and comment.—

(A) In general.—An audit conducted under paragraph (1) shall be provided to the public for comment.

(B) Response.—Not later than 60 days after the date on which the period for public comment ends, the Secretary shall respond to public comments received under subparagraph (A).

(3) Audit team.—

(A) In general.—An audit conducted under paragraph (1) shall be carried out by an audit team determined by the Secretary, in consultation with the State, in accordance with subparagraph (B).

(B) Consultation.—Consultation with the State under subparagraph (A) shall include a reasonable opportunity for the State to review and provide comments on the proposed members of the audit team.

(h) Monitoring.—After the fourth year of the participation of a State in the program, the Secretary shall monitor compliance by the State with the written agreement, including the provision by the State of financial resources to carry out the written agreement.

(i) Report to Congress.—The Secretary shall submit to Congress an annual report that describes the administration of the program.

(j) Termination.—

(1) Termination by secretary.—The Secretary may terminate the participation of any State in the program if—

(A) the Secretary determines that the State is not adequately carrying out the responsibilities assigned to the State;

(B) the Secretary provides to the State—

(i) a notification of the determination of noncompliance;

(ii) a period of not less than 120 days to take such corrective action as the Secretary determines to be necessary to comply with the applicable agreement; and

(iii) on request of the Governor of the State, a detailed description of each responsibility in need of corrective action regarding an inadequacy identified under subparagraph (A); and

(C) the State, after the notification and period provided under subparagraph (B), fails to take satisfactory corrective action, as determined by the Secretary.

(2) Termination by the state.—The State may terminate the participation of the State in the program at any time by providing to the Secretary a notice by not later than the date that is 90 days before the date of termination, and subject to such terms and conditions as the Secretary may provide.

(k) Capacity Building.—The Secretary, in cooperation with representatives of State officials, may carry out education, training, peer-exchange, and other initiatives as appropriate—

(1) to assist States in developing the capacity to participate in the assignment program under this section; and

(2) to promote information sharing and collaboration among States that are participating in the assignment program under this section.

(l) Relationship to Locally Administered Projects.—A State granted authority under this section may, as appropriate and at the request of a local government—

(1) exercise such authority on behalf of the local government for a locally administered project; or

(2) provide guidance and training on consolidating and minimizing the documentation and environmental analyses necessary for sponsors of a locally administered project to comply with the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and any comparable requirements under State law.

(m) Agency Deemed to Be Federal Agency.—A State agency that is assigned a responsibility under an agreement under this section shall be deemed to be an agency for the purposes of section 2412 of title 28.

(Added Pub. L. 109–59, title VI, §6005(a), Aug. 10, 2005, 119 Stat. 1868; amended Pub. L. 111–322, title II, §2203(c), Dec. 22, 2010, 124 Stat. 3526; Pub. L. 112–140, title I, §101(e)(1), June 29, 2012, 126 Stat. 392; Pub. L. 112–141, div. A, title I, §1313(a)–(h), July 6, 2012, 126 Stat. 545–547; Pub. L. 114–94, div. A, title I, §§1308, 1446(d)(3), Dec. 4, 2015, 129 Stat. 1390, 1438; Pub. L. 117–58, div. A, title I, §11313, Nov. 15, 2021, 135 Stat. 539.)

Editorial Notes

References in Text

The National Environmental Policy Act of 1969, referred to in subsecs. (a)(2)(A), (B)(ii), (iii) and (l)(2), is Pub. L. 91–190, Jan. 1, 1970, 83 Stat. 852, which is classified generally to chapter 55 (§4321 et seq.) of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 4321 of Title 42 and Tables.

The date on which amendments to this section by the MAP-21 take effect, referred to in subsec. (b)(2), is Oct. 1, 2012, see section 3(a) of Pub. L. 112–141, set out as an Effective and Termination Dates of 2012 Amendment note under section 101 of this title.

Amendments

2021—Subsec. (a)(2)(G). Pub. L. 117–58, §11313(1), inserted ", including the payment of fees awarded under section 2412 of title 28" before period at end.

Subsec. (c)(5). Pub. L. 117–58, §11313(2)(A), added par. (5) and struck out former par. (5) which read as follows: "have a term of not more than 5 years; and".

Subsec. (c)(7). Pub. L. 117–58, §11313(2)(B), (C), added par. (7).

Subsec. (g)(1)(B). Pub. L. 117–58, §11313(3)(A), struck out "and" at end.

Subsec. (g)(1)(C). Pub. L. 117–58, §11313(3)(D), added subpar. (C). Former subpar. (C) redesignated (D).

Pub. L. 117–58, §11313(3)(B), struck out "annual" before "audit,".

Subsec. (g)(1)(D). Pub. L. 117–58, §11313(3)(C), redesignated subpar. (C) as (D).

Subsec. (m). Pub. L. 117–58, §11313(4), added subsec. (m).

2015—Pub. L. 114–94, §1446(d)(3), amended directory language of Pub. L. 112–141, §1313(a)(1). See 2012 Amendment note below.

Subsec. (a)(2)(B)(iii). Pub. L. 114–94, §1308(1), substituted "(42 U.S.C. 4321 et seq.)" for "(42 U.S.C. 13 4321 et seq.)".

Subsec. (c)(4). Pub. L. 114–94, §1308(2), inserted "reasonably" before "considers necessary".

Subsec. (e). Pub. L. 114–94, §1308(3), inserted "and without further approval of" after "in lieu of".

Subsec. (g)(1). Pub. L. 114–94, §1308(4)(A), added par. (1) and struck out former par. (1). Prior to amendment, text read as follows: "To ensure compliance by a State with any agreement of the State under subsection (c) (including compliance by the State with all Federal laws for which responsibility is assumed under subsection (a)(2)), for each State participating in the program under this section, the Secretary shall conduct—

"(A) semiannual audits during each of the first 2 years of State participation; and

"(B) annual audits during each of the third and fourth years of State participation."

Subsec. (g)(3). Pub. L. 114–94, §1308(4)(B), added par. (3).

Subsec. (j)(1). Pub. L. 114–94, §1308(5), added par. (1) and struck out former par. (1). Prior to amendment, text read as follows: "The Secretary may terminate the participation of any State in the program if—

"(A) the Secretary determines that the State is not adequately carrying out the responsibilities assigned to the State;

"(B) the Secretary provides to the State—

"(i) notification of the determination of noncompliance; and

"(ii) a period of at least 30 days during which to take such corrective action as the Secretary determines is necessary to comply with the applicable agreement; and

"(C) the State, after the notification and period provided under subparagraph (B), fails to take satisfactory corrective action, as determined by the Secretary."

Subsecs. (k), (l). Pub. L. 114–94, §1308(6), added subsecs. (k) and (l).

2012—Pub. L. 112–141, §1313(a)(1), as amended by Pub. L. 114–94, §1446(d)(3), struck out "pilot" before "program" in section catchline.

Subsec. (a)(1). Pub. L. 112–141, §1313(a)(2), struck out "pilot" before "program (referred to".

Subsec. (a)(2)(B)(ii) to (iv). Pub. L. 112–141, §1313(b)(1), added cls. (ii) to (iv) and struck out former cl. (ii) which read as follows: "the Secretary may not assign—

"(I) responsibility for any conformity determination required under section 176 of the Clean Air Act (42 U.S.C. 7506); or

"(II) any responsibility imposed on the Secretary by section 134 or 135."

Subsec. (a)(2)(F), (G). Pub. L. 112–141, §1313(b)(2), added subpars. (F) and (G).

Subsec. (b)(1). Pub. L. 112–141, §1313(c)(1), added par. (1) and struck out former par. (1). Prior to amendment, text read as follows: "The Secretary may permit not more than 5 States (including the States of Alaska, California, Ohio, Oklahoma, and Texas) to participate in the program."

Subsec. (b)(2). Pub. L. 112–141, §1313(c)(2), substituted "date on which amendments to this section by the MAP-21 take effect, the Secretary shall amend, as appropriate," for "date of enactment of this section, the Secretary shall promulgate" in introductory provisions.

Subsec. (c)(4) to (6). Pub. L. 112–141, §1313(d), added pars. (4) to (6).

Subsec. (e). Pub. L. 112–141, §1313(e), substituted "subsection (j)" for "subsection (i)".

Subsec. (g)(1)(B). Pub. L. 112–141, §1313(f), substituted "of the third and fourth years" for "subsequent year".

Subsec. (h). Pub. L. 112–141, §1313(g)(2), added subsec. (h). Former subsec. (h) redesignated (i).

Subsec. (i). Pub. L. 112–141, §1313(g)(1), redesignated subsec. (h) as (i). Former subsec. (i) redesignated (j).

Subsec. (i)(1). Pub. L. 112–140 substituted "September 30, 2012" for "the date that is 7 years after the date of enactment of this section".

Subsec. (j). Pub. L. 112–141, §1313(h), amended subsec. (j) generally. Prior to amendment, subsec. (j) related to termination of the original pilot program on Sept. 30, 2012, and termination of State participation by the Secretary.

Pub. L. 112–141, §1313(g)(1), redesignated subsec. (i) as (j).

2010—Subsec. (i)(1). Pub. L. 111–322 substituted "7 years after" for "6 years after".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–58 effective Oct. 1, 2021, see section 10003 of Pub. L. 117–58, set out as a note under section 101 of this title.

Effective Date of 2015 Amendment

Except as otherwise provided, amendment by Pub. L. 114–94 effective Oct. 1, 2015, see section 1003 of Pub. L. 114–94, set out as a note under section 5313 of Title 5, Government Organization and Employees.

Pub. L. 114–94, div. A, title I, §1446(d), Dec. 4, 2015, 129 Stat. 1438, provided that the amendment made by section 1446(d)(3) is effective as of July 6, 2012, and as if included in Pub. L. 112–141 as enacted.

Effective Date of 2012 Amendment

Amendment by Pub. L. 112–141 effective Oct. 1, 2012, see section 3(a) of Pub. L. 112–141, set out as an Effective and Termination Dates of 2012 Amendment note under section 101 of this title.

Pub. L. 112–140, title I, §101(e)(2), June 29, 2012, 126 Stat. 392, provided that: "The amendment made by paragraph (1) [amending this section] shall take effect as if included in section 101 of the Surface Transportation Extension Act of 2012 [Pub. L. 112–102] and shall not be subject to the special rule in section 1(c) of this Act [set out as an Effective and Termination Dates of 2012 Amendment note under section 101 of this title]."
23 U.S.C. § 154 (2024) — Title 23: HIGHWAYS / Chapter 1: FEDERAL-AID HIGHWAYS / Section 154: Open container requirements
Open container requirements
Status: in_force

(a) Definitions.—In this section, the following definitions apply:

(1) Alcoholic beverage.—The term "alcoholic beverage" has the meaning given the term in section 158(c).

(2) Motor vehicle.—The term "motor vehicle" means a vehicle driven or drawn by mechanical power and manufactured primarily for use on public highways, but does not include a vehicle operated exclusively on a rail or rails.

(3) Open alcoholic beverage container.—The term "open alcoholic beverage container" means any bottle, can, or other receptacle—

(A) that contains any amount of alcoholic beverage; and

(B)(i) that is open or has a broken seal; or

(ii) the contents of which are partially removed.

(4) Passenger area.—The term "passenger area" shall have the meaning given the term by the Secretary by regulation.

(b) Open Container Laws.—

(1) In general.—For the purposes of this section, each State shall have in effect a law that prohibits the possession of any open alcoholic beverage container, or the consumption of any alcoholic beverage, in the passenger area of any motor vehicle (including possession or consumption by the driver of the vehicle) located on a public highway, or the right-of-way of a public highway, in the State.

(2) Motor vehicles designed to transport many passengers.—For the purposes of this section, if a State has in effect a law that makes unlawful the possession of any open alcoholic beverage container by the driver (but not by a passenger)—

(A) in the passenger area of a motor vehicle designed, maintained, or used primarily for the transportation of persons for compensation; or

(B) in the living quarters of a house coach or house trailer,

the State shall be deemed to have in effect a law described in this subsection with respect to such a motor vehicle for each fiscal year during which the law is in effect.

(c) Transfer of Funds.—

(1) Fiscal years 2001 and 2002.—On October 1, 2000, and October 1, 2001, if a State has not enacted or is not enforcing an open container law described in subsection (b), the Secretary shall transfer an amount equal to 1½ percent of the funds apportioned to the State on that date under each of paragraphs (1), (2), and (4) of section 104(b) to the apportionment of the State under section 402—

(A) to be used for impaired driving countermeasures; or

(B) to be directed to State and local law enforcement agencies for enforcement of laws prohibiting driving while intoxicated or driving under the influence and other related laws (including regulations), including the purchase of equipment, the training of officers, and the use of additional personnel for specific impaired driving countermeasures, dedicated to enforcement of the laws (including regulations).

(2) Fiscal year 2022 and thereafter.—

(A) Reservation of funds.—

(i) In general.—On October 1, 2021, and each October 1 thereafter, in the case of a State described in clause (ii), the Secretary shall reserve an amount equal to 2.5 percent of the funds to be apportioned to the State on that date under each of paragraphs (1) and (2) of section 104(b) until the State certifies to the Secretary the means by which the State will use those reserved funds in accordance with subparagraphs (A) and (B) of paragraph (1), and paragraph (3).

(ii) States described.—A State referred to in clause (i) is a State—

(I) that has not enacted or is not enforcing an open container law described in subsection (b); and

(II) for which the Secretary determined for the prior fiscal year that the State had not enacted or was not enforcing an open container law described in subsection (b).

(B) Transfer of funds.—As soon as practicable after the date of receipt of a certification from a State under subparagraph (A)(i), the Secretary shall—

(i) transfer the reserved funds identified by the State for use as described in subparagraphs (A) and (B) of paragraph (1) to the apportionment of the State under section 402; and

(ii) release the reserved funds identified by the State as described in paragraph (3).

(3) Use for highway safety improvement program.—

(A) In general.—A State may elect to use all or a portion of the funds reserved under paragraph (2) for activities eligible under section 148.

(B) State departments of transportation.—If the State makes an election under subparagraph (A), the funds shall be transferred to the department of transportation of the State, which shall be responsible for the administration of the funds.

(4) Federal share.—The Federal share of the cost of a project carried out with funds transferred under paragraph (1) or (2), or used under paragraph (3), shall be 100 percent.

(5) Derivation of amount to be transferred.—The amount to be transferred or released under paragraph (2) may be derived from the following:

(A) The apportionment of the State under section 104(b)(1).

(B) The apportionment of the State under section 104(b)(2).

(6) Transfer of obligation authority.—

(A) In general.—If the Secretary transfers under this subsection any funds to the apportionment of a State under section 402 for a fiscal year, the Secretary shall transfer an amount, determined under subparagraph (B), of obligation authority distributed for the fiscal year to the State for Federal-aid highways and highway safety construction programs for carrying out projects under section 402.

(B) Amount.—The amount of obligation authority referred to in subparagraph (A) shall be determined by multiplying—

(i) the amount of funds transferred under subparagraph (A) to the apportionment of the State under section 402 for the fiscal year, by

(ii) the ratio that—

(I) the amount of obligation authority distributed for the fiscal year to the State for Federal-aid highways and highway safety construction programs, bears to

(II) the total of the sums apportioned to the State for Federal-aid highways and highway safety construction programs (excluding sums not subject to any obligation limitation) for the fiscal year.

(7) Limitation on applicability of obligation limitation.—Notwithstanding any other provision of law, no limitation on the total of obligations for highway safety programs under section 402 shall apply to funds transferred under this subsection to the apportionment of a State under such section.

(Added Pub. L. 105–178, title I, §1405(a), as added Pub. L. 105–206, title IX, §9005(a), July 22, 1998, 112 Stat. 843; amended Pub. L. 109–59, title I, §1401(a)(3)(C), Aug. 10, 2005, 119 Stat. 1225; Pub. L. 112–141, div. A, title I, §1402, July 6, 2012, 126 Stat. 556; Pub. L. 114–94, div. A, title I, §1446(a)(8), Dec. 4, 2015, 129 Stat. 1437; Pub. L. 117–58, div. A, title I, §11131(a), div. B, title IV, §24106(a), Nov. 15, 2021, 135 Stat. 509, 806.)

Editorial Notes

Prior Provisions

A prior section 154, added Pub. L. 93–643, §114(a), Jan. 4, 1975, 88 Stat. 2286; amended Pub. L. 95–599, title II, §205, Nov. 6, 1978, 92 Stat. 2729; Pub. L. 97–35, title XI, §1108, Aug. 13, 1981, 95 Stat. 626; Pub. L. 100–17, title I, §174, Apr. 2, 1987, 101 Stat. 218; Pub. L. 102–240, title I, §1029(a), (b), (e), (g), Dec. 18, 1991, 105 Stat. 1968–1970, established the national maximum speed limit, prior to repeal by Pub. L. 104–59, title II, §205(d)(1)(B), (3), Nov. 28, 1995, 109 Stat. 577, applicable to State on 10th day following Nov. 28, 1995, except that if legislature was not in session on such date and chief executive officer declared before such date that legislature was not in session and that State preferred applicability date that was after date on which legislature would convene, applicable to State on 60th day following date on which legislature would next convene.

Amendments

2021—Subsec. (c)(1). Pub. L. 117–58, §24106(a), substituted "impaired" for "alcohol-impaired" in subpars. (A) and (B).

Subsec. (c)(2). Pub. L. 117–58, §11131(a)(1), substituted "2022" for "2012" in heading.

Subsec. (c)(2)(A). Pub. L. 117–58, §11131(a)(2), added subpar. (A) and struck out former subpar. (A). Prior to amendment, text read as follows: "On October 1, 2011, and each October 1 thereafter, if a State has not enacted or is not enforcing an open container law described in subsection (b), the Secretary shall reserve an amount equal to 2.5 percent of the funds to be apportioned to the State on that date under each of paragraphs (1) and (2) of section 104(b) until the State certifies to the Secretary the means by which the State will use those reserved funds in accordance with subparagraphs (A) and (B) of paragraph (1) and paragraph (3)."

Subsec. (c)(2)(B). Pub. L. 117–58, §11131(a)(3), substituted "subparagraph (A)(i)" for "subparagraph (A)" in introductory provisions.

2015—Subsec. (c)(1). Pub. L. 114–94, §1446(a)(8)(A), substituted "paragraphs (1), (2), and (4)" for "paragraphs (1), (3), and (4)".

Subsec. (c)(3)(A). Pub. L. 114–94, §1446(a)(8)(B), substituted "reserved" for "transferred".

Subsec. (c)(5). Pub. L. 114–94, §1446(a)(8)(C)(i), inserted "or released" after "transferred" in introductory provisions.

Subsec. (c)(5)(A). Pub. L. 114–94, §1446(a)(8)(C)(ii), substituted "under section 104(b)(1)" for "under section 104(b)(l)".

2012—Subsec. (c)(2). Pub. L. 112–141, §1402(1), added par. (2) and struck out former par. (2). Prior to amendment, text read as follows: "On October 1, 2002, and each October 1 thereafter, if a State has not enacted or is not enforcing an open container law described in subsection (b), the Secretary shall transfer an amount equal to 3 percent of the funds apportioned to the State on that date under each of paragraphs (1), (3), and (4) of section 104(b) to the apportionment of the State under section 402 to be used or directed as described in subparagraph (A) or (B) of paragraph (1)."

Subsec. (c)(3). Pub. L. 112–141, §1402(2), added par. (3) and struck out former par. (3). Prior to amendment, text read as follows: "A State may elect to use all or a portion of the funds transferred under paragraph (1) or (2) for activities eligible under section 148."

Subsec. (c)(5). Pub. L. 112–141, §1402(3), added par. (5) and struck out former par. (5). Prior to amendment, text read as follows: "The amount to be transferred under paragraph (1) or (2) may be derived from one or more of the following:

"(A) The apportionment of the State under section 104(b)(1).

"(B) The apportionment of the State under section 104(b)(3).

"(C) The apportionment of the State under section 104(b)(4)."

2005—Subsec. (c)(3). Pub. L. 109–59 substituted "148" for "152".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by section 11131(a) of Pub. L. 117–58 effective Oct. 1, 2021, see section 10003 of Pub. L. 117–58, set out as a note under section 101 of this title.

Effective Date of 2015 Amendment

Amendment by Pub. L. 114–94 effective Oct. 1, 2015, see section 1003 of Pub. L. 114–94, set out as a note under section 5313 of Title 5, Government Organization and Employees.

Effective Date of 2012 Amendment

Amendment by Pub. L. 112–141 effective Oct. 1, 2012, see section 3(a) of Pub. L. 112–141, set out as an Effective and Termination Dates of 2012 Amendment note under section 101 of this title.

Effective Date

Section effective simultaneously with enactment of Pub. L. 105–178 and to be treated as included in Pub. L. 105–178 at time of enactment, see section 9016 of Pub. L. 105–206, set out as an Effective Date of 1998 Amendment note under section 101 of this title.
23 U.S.C. § 168 (2024) — Title 23: HIGHWAYS / Chapter 1: FEDERAL-AID HIGHWAYS / Section 168: Integration of planning and environmental review
Integration of planning and environmental review
Status: in_force

(a) Definitions.—In this section, the following definitions apply:

(1) Environmental review process.—The term "environmental review process" has the meaning given the term in section 139(a).

(2) Lead agency.—The term "lead agency" has the meaning given the term in section 139(a).

(3) Planning product.—The term "planning product" means a decision, analysis, study, or other documented information that is the result of an evaluation or decisionmaking process carried out by a metropolitan planning organization or a State, as appropriate, during metropolitan or statewide transportation planning under section 134 or 135, respectively.

(4) Project.—The term "project" has the meaning given the term in section 139(a).

(5) Project sponsor.—The term "project sponsor" has the meaning given the term in section 139(a).

(6) Relevant agency.—The term "relevant agency" means the agency with authority under subparagraph (A) or (B) of subsection (b)(1).

(b) Adoption or Incorporation by Reference of Planning Products for Use in NEPA Proceedings.—

(1) In general.—Subject to subsection (d) and to the maximum extent practicable and appropriate, the following agencies may adopt or incorporate by reference and use a planning product in proceedings relating to any class of action in the environmental review process of the project:

(A) The lead agency for a project, with respect to an environmental impact statement, environmental assessment, categorical exclusion, or other document prepared under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).

(B) The cooperating agency with responsibility under Federal law, with respect to the process for and completion of any environmental permit, approval, review, or study required for a project under any Federal law other than the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), if consistent with that law.

(2) Identification.—If the relevant agency makes a determination to adopt or incorporate by reference and use a planning product, the relevant agency shall identify the agencies that participated in the development of the planning products.

(3) Adoption or incorporation by reference of planning products.—The relevant agency may—

(A) adopt or incorporate by reference an entire planning product under paragraph (1); or

(B) select portions of a planning project under paragraph (1) for adoption or incorporation by reference.

(4) Timing.—A determination under paragraph (1) with respect to the adoption or incorporation by reference of a planning product may—

(A) be made at the time the relevant agencies decide the appropriate scope of environmental review for the project; or

(B) occur later in the environmental review process, as appropriate.

(c) Applicability.—

(1) Planning decisions.—The relevant agency in the environmental review process may adopt or incorporate by reference decisions from a planning product, including—

(A) whether tolling, private financial assistance, or other special financial measures are necessary to implement the project;

(B) a decision with respect to general travel corridor or modal choice, including a decision to implement corridor or subarea study recommendations to advance different modal solutions as separate projects with independent utility;

(C) the purpose and the need for the proposed action;

(D) preliminary screening of alternatives and elimination of unreasonable alternatives;

(E) a basic description of the environmental setting;

(F) a decision with respect to methodologies for analysis; and

(G) an identification of programmatic level mitigation for potential impacts of a project, including a programmatic mitigation plan developed in accordance with section 169, that the relevant agency determines are more effectively addressed on a national or regional scale, including—

(i) measures to avoid, minimize, and mitigate impacts at a national or regional scale of proposed transportation investments on environmental resources, including regional ecosystem and water resources; and

(ii) potential mitigation activities, locations, and investments.

(2) Planning analyses.—The relevant agency in the environmental review process may adopt or incorporate by reference analyses from a planning product, including—

(A) travel demands;

(B) regional development and growth;

(C) local land use, growth management, and development;

(D) population and employment;

(E) natural and built environmental conditions;

(F) environmental resources and environmentally sensitive areas;

(G) potential environmental effects, including the identification of resources of concern and potential direct, indirect, and cumulative effects on those resources; and

(H) mitigation needs for a proposed project, or for programmatic level mitigation, for potential effects that the lead agency determines are most effectively addressed at a regional or national program level.

(d) Conditions.—The relevant agency in the environmental review process may adopt or incorporate by reference a planning product under this section if the relevant agency determines, with the concurrence of the lead agency and, if the planning product is necessary for a cooperating agency to issue a permit, review, or approval for the project, with the concurrence of the cooperating agency, that the following conditions have been met:

(1) The planning product was developed through a planning process conducted pursuant to applicable Federal law.

(2) The planning product was developed in consultation with appropriate Federal and State resource agencies and Indian tribes.

(3) The planning process included broad multidisciplinary consideration of systems-level or corridor-wide transportation needs and potential effects, including effects on the human and natural environment.

(4) The planning process included public notice that the planning products produced in the planning process may be adopted during a subsequent environmental review process in accordance with this section.

(5) During the environmental review process, the relevant agency has—

(A) made the planning documents available for public review and comment by members of the general public and Federal, State, local, and tribal governments that may have an interest in the proposed project;

(B) provided notice of the intention of the relevant agency to adopt or incorporate by reference the planning product; and

(C) considered any resulting comments.

(6) There is no significant new information or new circumstance that has a reasonable likelihood of affecting the continued validity or appropriateness of the planning product.

(7) The planning product has a rational basis and is based on reliable and reasonably current data and reasonable and scientifically acceptable methodologies.

(8) The planning product is documented in sufficient detail to support the decision or the results of the analysis and to meet requirements for use of the information in the environmental review process.

(9) The planning product is appropriate for adoption or incorporation by reference and use in the environmental review process for the project and is incorporated in accordance with, and is sufficient to meet the requirements of, the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and section 1502.21 of title 40, Code of Federal Regulations (as in effect on the date of enactment of the FAST Act).

(10) The planning product was approved within the 5-year period ending on the date on which the information is adopted or incorporated by reference.

(e) Effect of Adoption or Incorporation by Reference.—Any planning product adopted or incorporated by reference by the relevant agency in accordance with this section may be—

(1) incorporated directly into an environmental review process document or other environmental document; and

(2) relied on and used by other Federal agencies in carrying out reviews of the project.

(f) Rules of Construction.—

(1) In general.—This section does not make the environmental review process applicable to the transportation planning process conducted under this title and chapter 53 of title 49.

(2) Transportation planning activities.—Initiation of the environmental review process as a part of, or concurrently with, transportation planning activities does not subject transportation plans and programs to the environmental review process.

(3) Planning products.—This section does not affect the use of planning products in the environmental review process pursuant to other authorities under any other provision of law or restrict the initiation of the environmental review process during planning.

(Added Pub. L. 112–141, div. A, title I, §1310(a), July 6, 2012, 126 Stat. 540; amended Pub. L. 114–94, div. A, title I, §1305, Dec. 4, 2015, 129 Stat. 1386.)

Editorial Notes

References in Text

The National Environmental Policy Act of 1969, referred to in subsecs. (b)(1) and (d)(9), is Pub. L. 91–190, Jan. 1, 1970, 83 Stat. 852, which is classified generally to chapter 55 (§4321 et seq.) of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 4321 of Title 42 and Tables.

The date of enactment of the FAST Act, referred to in subsec. (d)(9), is the date of enactment of Pub. L. 114–94, which was approved Dec. 4, 2015.

Amendments

2015—Pub. L. 114–94 amended section generally. Prior to amendment, section related to integration of planning and environmental review.

Statutory Notes and Related Subsidiaries

Effective Date of 2015 Amendment

Amendment by Pub. L. 114–94 effective Oct. 1, 2015, see section 1003 of Pub. L. 114–94, set out as a note under section 5313 of Title 5, Government Organization and Employees.

Effective Date

Section effective Oct. 1, 2012, see section 3(a) of Pub. L. 112–141, set out as an Effective and Termination Dates of 2012 Amendment note under section 101 of this title.