§ 133 TITLE 23—HIGHWAYS Page 100

1So in original. Probably should be ‘‘to be’’.

agreement between a State and such Federal

agency and the State makes a deposit with or

payment to such Federal agency as may be required in fulfillment of the State’s obligation

under such agreement for the work undertaken

or to be undertaken by such Federal agency, the

Secretary, upon execution of a project agreement with such State for the proposed Federalaid project, may reimburse the State out of the

appropriate appropriations the estimated Federal share under the provisions of this title of

the State’s obligation so deposited or paid by

such State. Upon completion of such project and

its acceptance by the Secretary, an adjustment

shall be made in such Federal share payable on

account of such project based on the final cost

thereof. Any sums reimbursed to the State

under this section which may be in excess of the

Federal pro rata share under the provisions of

this title of the State’s share of the cost as set

forth in the approved final voucher submitted by

the State shall be recovered and credited to the

same class of funds from which the Federal payment under this section was made.

(Added Pub. L. 86–657, §4(a), July 14, 1960, 74

Stat. 522.)

§ 133. Surface transportation program

(a) ESTABLISHMENT.—The Secretary shall establish a surface transportation program in accordance with this section.

(b) ELIGIBLE PROJECTS.—A State may obligate

funds apportioned to it under section 104(b)(3)

for the surface transportation program only for

the following:

(1) Construction, reconstruction, rehabilitation, resurfacing, restoration, and operational

improvements for highways (including Interstate highways) and bridges (including bridges

on public roads of all functional classifications), including any such construction or reconstruction necessary to accommodate other

transportation modes, and including the seismic retrofit and painting of and application of

calcium magnesium acetate on bridges and approaches thereto and other elevated structures, mitigation of damage to wildlife, habitat, and ecosystems caused by a transportation project funded under this title.

(2) Capital costs for transit projects eligible

for assistance under chapter 53 of title 49 and

publicly owned intracity or intercity bus terminals and facilities.

(3) Carpool projects, fringe and corridor

parking facilities and programs, and bicycle

transportation and pedestrian walkways in accordance with section 217.

(4) Highway and transit safety improvements and programs, hazard eliminations,

projects to mitigate hazards caused by wildlife, and railway-highway grade crossings.

(5) Highway and transit research and development and technology transfer programs.

(6) Capital and operating costs for traffic

monitoring, management, and control facilities and programs.

(7) Surface transportation planning programs.

(8) Transportation enhancement activities.

(9) Transportation control measures listed in

section 108(f)(1)(A) (other than clauses (xii)

and (xvi)) of the Clean Air Act.

(10) Development and establishment of management systems under section 303.

(11) In accordance with all applicable Federal law and regulations, participation in wetlands mitigation efforts related to projects

funded under this title, which may include

participation in wetlands mitigation banks;

contributions to statewide and regional efforts

to conserve, restore, enhance and create wetlands; and development of statewide and regional wetlands conservation and mitigation

plans, including any such banks, efforts, and

plans authorized pursuant to the Water Resources Development Act of 1990 (including

crediting provisions). Contributions to such

mitigation efforts may take place concurrent

with or in advance of project construction.

Contributions toward these efforts may occur

in advance of project construction only if such

efforts are consistent with all applicable requirements of Federal law and regulations and

State transportation planning processes.

(c) LOCATION OF PROJECTS.—Except as provided

in subsection (b)(1), surface transportation program projects (other than those described in

subsections (b)(3) and (4)) may not be undertaken on roads functionally classified as local or

rural minor collectors, unless such roads are on

a Federal-aid highway system on January 1,

1991, and except as approved by the Secretary.

(d) ALLOCATIONS OF APPORTIONED FUNDS.—

(1) FOR SAFETY PROGRAMS.—10 percent of the

funds apportioned to a State under section

104(b)(3) for the surface transportation program for a fiscal year shall only be available

for carrying out sections 130 and 152 of this

title. Of the funds set aside under the preceding sentence, the State shall reserve in such

fiscal year an amount of such funds for carrying out each such section which is not less

than the amount of funds apportioned to the

State in fiscal year 1991 under such section.

(2) FOR TRANSPORTATION ENHANCEMENT ACTIVITIES.—10 percent of the funds apportioned

to a State under section 104(b)(3) for a fiscal

year shall only be available for transportation

enhancement activities.

(3) DIVISION BETWEEN URBANIZED AREAS OF

OVER 200,000 POPULATION AND OTHER AREAS.—

(A) GENERAL RULE.—Except as provided in

subparagraphs (C) and (D), 62.5 percent of the

remaining 80 percent of the funds apportioned to a State under section 104(b)(3) for

a fiscal year shall be obligated under this

section—

(i) in urbanized areas of the State with

an urbanized area population of over

200,000, and

(ii) in other areas of the State,

in proportion to their relative share of the

State’s population. The remaining 37.5 percent may be obligated in any area of the

State. Funds attributed to an urbanized area

under clause (i) may be obligated in the metropolitan area established under section 134

which encompasses the urbanized area.

(B) SPECIAL RULE FOR AREAS OF LESS THAN

5,000 POPULATION.—Of the amounts required

tobe 1 obligated under subparagraph (A)(ii),
Page 101 TITLE 23—HIGHWAYS § 133

the State shall obligate in areas of the State

(other than urban areas with a population

greater than 5,000) an amount which is not

less than 110 percent of the amount of funds

apportioned to the State for the Federal-aid

secondary system for fiscal year 1991.

(C) SPECIAL RULE FOR CERTAIN STATES.—In

the case of a State in which—

(i) greater than 80 percent of the population of the State is located in 1 or more

metropolitan statistical areas, and

(ii) greater than 80 percent of the land

area of such State is owned by the United

States,

the 62.5 percentage specified in the first sentence of subparagraph (A) shall be 35 percent

and the percentage specified in the second

sentence of subparagraph (A) shall be 65 percent.

(D) NONCONTIGUOUS STATES EXEMPTION.—

Subparagraph (A) shall not apply to any

State which is noncontiguous with the continental United States.

(E) DISTRIBUTION BETWEEN URBANIZED

AREAS OF OVER 200,000 POPULATION.—The

amount of funds which a State is required to

obligate under subparagraph (A)(i) shall be

obligated in urbanized areas described in

subparagraph (A)(i) based on the relative

population of such areas; except that the

State may obligate such funds based on

other factors if the State and the relevant

metropolitan planning organizations jointly

apply to the Secretary for the permission to

do so and the Secretary grants the request.

(4) APPLICABILITY OF PLANNING REQUIREMENTS.—Programming and expenditure of

funds for projects under this section shall be

consistent with the requirements of sections

134 and 135 of this title.

(5) APPLICABILITY OF CERTAIN REQUIREMENTS

TO THIRD PARTY SELLERS.—

(A) IN GENERAL.—Except as provided in

subparagraphs (B) and (C), in the case of a

transportation enhancement activity funded

from the allocation required under paragraph (2), if real property or an interest in

real property is to be acquired from a qualified organization exclusively for conservation purposes (as determined under section

170(h) of the Internal Revenue Code of 1986),

the organization shall be considered to be

the owner of the property for the purpose of

the Uniform Relocation Assistance and Real

Property Acquisition Policies Act of 1970 (42

U.S.C. 4601 et seq.).

(B) FEDERAL APPROVAL PRIOR TO INVOLVEMENT OF QUALIFIED ORGANIZATION.—If Federal approval of the acquisition of the real

property or interest predates the involvement of a qualified organization described in

subparagraph (A) in the acquisition of the

property, the organization shall be considered to be an acquiring agency or person as

described in section 24.101(a)(2) of title 49,

Code of Federal Regulations, for the purpose

of the Uniform Relocation Assistance and

Real Property Acquisition Policies Act of

1970.

(C) ACQUISITIONS ON BEHALF OF RECIPIENTS

OF FEDERAL FUNDS.—If a qualified organization described in subparagraph (A) has contracted with a State highway department or

other recipient of Federal funds to acquire

the real property or interest on behalf of the

recipient, the organization shall be considered to be an agent of the recipient for the

purpose of the Uniform Relocation Assistance and Real Property Acquisition Policies

Act of 1970.

(e) ADMINISTRATION.—

(1) NONCOMPLIANCE.—If the Secretary determines that a State or local government has

failed to comply substantially with any provision of this section, the Secretary shall notify

the State that, if the State fails to take corrective action within 60 days from the date of

receipt of the notification, the Secretary will

withhold future apportionments under section

104(b)(3) until the Secretary is satisfied that

appropriate corrective action has been taken.

(2) CERTIFICATION.—The Governor of each

State shall certify before the beginning of

each quarter of a fiscal year that the State

will meet all the requirements of this section

and shall notify the Secretary of the amount

of obligations expected to be incurred for surface transportation program projects during

such quarter. A State may request adjustment

to the obligation amounts later in each of

such quarters. Acceptance of the notification

and certification shall be deemed a contractual obligation of the United States for the

payment of the surface transportation program funds expected to be obligated by the

State in such quarter for projects not subject

to review by the Secretary under this chapter.

(3) PAYMENTS.—

(A) IN GENERAL.—Except as provided in

subparagraph (B), the Secretary shall make

payments to a State of costs incurred by the

State for the surface transportation program

in accordance with procedures to be established by the Secretary. Payments shall not

exceed the Federal share of costs incurred as

of the date the State requests payments.

(B) ADVANCE PAYMENT OPTION FOR TRANSPORTATION ENHANCEMENT ACTIVITIES.—

(i) IN GENERAL.—The Secretary may advance funds to the State for transportation enhancement activities funded from

the allocation required by subsection (d)(2)

for a fiscal year if the Secretary certifies

for the fiscal year that the State has authorized and uses a process for the selection of transportation enhancement

projects that involves representatives of

affected public entities, and private citizens, with expertise related to transportation enhancement activities.

(ii) LIMITATION ON AMOUNTS.—Amounts

advanced under this subparagraph shall be

limited to such amounts as are necessary

to make prompt payments for project

costs.

(iii) EFFECT ON OTHER REQUIREMENTS.—

This subparagraph shall not exempt a

State from other requirements of this title

relating to the surface transportation program.

(4) POPULATION DETERMINATIONS.—The Secretary shall use estimates prepared by the
§ 134 TITLE 23—HIGHWAYS Page 102

Secretary of Commerce when determining population figures for purposes of this section.

(5) TRANSPORTATION ENHANCEMENT ACTIVITIES.—

(A) CATEGORICAL EXCLUSIONS.—To the extent appropriate, the Secretary shall develop

categorical exclusions from the requirement

that an environmental assessment or an environmental impact statement under section

102 of the National Environmental Policy

Act of 1969 (42 U.S.C. 4332) be prepared for

transportation enhancement activities funded from the allocation required by subsection (d)(2).

(B) NATIONWIDE PROGRAMMATIC AGREEMENT.—The Secretary, in consultation with

the National Conference of State Historic

Preservation Officers and the Advisory

Council on Historic Preservation established

under title II of the National Historic Preservation Act (16 U.S.C. 470i et seq.), shall develop a nationwide programmatic agreement

governing the review of transportation enhancement activities funded from the allocation required by subsection (d)(2), in accordance with—

(i) section 106 of such Act (16 U.S.C. 470f);

and

(ii) the regulations of the Advisory

Council on Historic Preservation.

(f) ALLOCATION OF OBLIGATION AUTHORITY.—A

State which is required to obligate in an urbanized area with an urbanized area population of

over 200,000 under subsection (d) funds apportioned to it under section 104(b)(3) shall allocate

during the 6-fiscal year period 1992 through 1997

an amount of obligation authority distributed

to the State for Federal-aid highways and highway safety construction for use in such area determined by multiplying—

(1) the aggregate amount of funds which the

State is required to obligate in such area

under subsection (d) during such period; by

(2) the ratio of the aggregate amount of obligation authority distributed to the State for

Federal-aid highways and highway safety construction during such period to the total sums

apportioned to the State for Federal-aid highways and highway safety construction (excluding sums not subject to an obligation limitation) during such period.

(Added Pub. L. 102–240, title I, §1007(a)(1), Dec.

18, 1991, 105 Stat. 1927; amended Pub. L. 103–429,

§3(4), Oct. 31, 1994, 108 Stat. 4377; Pub. L. 104–59,

title III, §§315, 316, Nov. 28, 1995, 109 Stat. 586,

587.)

REFERENCES IN TEXT

Section 108(f)(1)(A) of the Clean Air Act, referred to

in subsec. (b)(9), is classified to section 7408(f)(1)(A) of

Title 42, The Public Health and Welfare.

The Water Resources Development Act of 1990, referred to in subsec. (b)(11), is Pub. L. 101–640, Nov. 28,

1990, 104 Stat. 4604. For complete classification of this

Act to the Code, see Short Title of 1990 Amendment

note set out under section 2201 of Title 33, Navigation

and Navigable Waters, and Tables.

The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, referred to in subsec. (d)(5), is Pub. L. 91–646, Jan. 2, 1971, 84 Stat. 1894,

as amended, which is classified generally to chapter 61

(§4601 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 4601 of

Title 42 and Tables.

Section 170(h) of the Internal Revenue Code of 1986,

referred to in subsec. (d)(5)(A), is classified to section

170(h) of Title 26, Internal Revenue Code.

The National Historic Preservation Act, referred to

in subsec. (e)(5)(B), is Pub. L. 89–665, Oct. 15, 1966, 80

Stat. 915, as amended. Title II of the Act is classified

generally to part B (§470i et seq.) of subchapter II of

chapter 1A of Title 16, Conservation. For complete classification of this Act to the Code, see section 470 of

Title 16 and Tables.

PRIOR PROVISIONS

A prior section 133, Pub. L. 87–866, §5(a), Oct. 23, 1962,

76 Stat. 1146, provided for relocation assistance for persons displaced by Federal-aid highway construction,

prior to repeal by Pub. L. 90–495, §37, Aug. 23, 1968, 82

Stat. 836, effective July 1, 1970. See section 501 et seq.

of this title.

AMENDMENTS

1995—Subsec. (d)(5). Pub. L. 104–59, §315, added par.

(5).

Subsec. (e)(3). Pub. L. 104–59, §316(1), designated existing provisions as subpar. (A), inserted subpar. (A) heading, realigned margins, substituted ‘‘Except as provided

in subparagraph (B), the’’ for ‘‘The’’, and added subpar.

(B).

Subsec. (e)(5). Pub. L. 104–59, §316(2), added par. (5).

1994—Subsec. (b)(2). Pub. L. 103–429 substituted ‘‘chapter 53 of title 49’’ for ‘‘the Federal Transit Act’’.

EFFECTIVE DATE

Section 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 an Effective Date of 1991 Amendment note under

section 104 of this title.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 104, 117, 134, 157,

160 of this title; title 49 sections 5303, 5305.

§ 134. Metropolitan planning

(a) GENERAL REQUIREMENTS.—It is in the national interest to encourage and promote the development of transportation systems embracing

various modes of transportation in a manner

which will efficiently maximize mobility of people and goods within and through urbanized

areas and minimize transportation-related fuel

consumption and air pollution. To accomplish

this objective, metropolitan planning organizations, in cooperation with the State, shall develop transportation plans and programs for urbanized areas of the State. Such plans and programs shall provide for the development of

transportation facilities (including pedestrian

walkways and bicycle transportation facilities)

which will function as an intermodal transportation system for the State, the metropolitan

areas, and the Nation. The process for developing such plans and programs shall provide for

consideration of all modes of transportation and

shall be continuing, cooperative, and comprehensive to the degree appropriate, based on the

complexity of the transportation problems.

(b) DESIGNATION OF METROPOLITAN PLANNING

ORGANIZATIONS.—

(1) IN GENERAL.—To carry out the transportation planning process required by this sec-