Page 77 TITLE 23—HIGHWAYS § 122

tions with respect to the permissible amounts of

such payments continued in sections 106(c), 120,

and 130 of this title.

(e) Such payments shall be made to such official or officials or depository as may be designated by the State highway department and

authorized under the laws of the State to receive public funds of the State.

(Pub. L. 85–767, Aug. 27, 1958, 72 Stat. 899; Pub. L.

88–157, §7(b), Oct. 24, 1963, 77 Stat. 278; Pub. L.

93–87, title I, §117, Aug. 13, 1973, 87 Stat. 259; Pub.

L. 94–280, title I, §118(a), May 5, 1976, 90 Stat. 437;

Pub. L. 100–17, title I, §133(b)(6), Apr. 2, 1987, 101

Stat. 171; Pub. L. 102–240, title I, §1018(b), Dec.

18, 1991, 105 Stat. 1948.)

AMENDMENTS

1991—Subsec. (d). Pub. L. 102–240 substituted ‘‘106(c),

120,’’ for ‘‘120’’ and struck out at end ‘‘Payments for

construction engineering on any project financed with

Federal-aid highway funds shall not exceed 15 percent

of the Federal share of the cost of construction of such

project after excluding from the cost of construction

the costs of rights-of-way, preliminary engineering, and

construction engineering.’’

1987—Subsec. (d). Pub. L. 100–17 substituted ‘‘15 percent’’ for ‘‘10 per centum’’ and struck out at end ‘‘However, this limitation shall be 15 per centum in any

State with respect to which the Secretary finds such

higher limitation to be necessary.’’

1976—Subsec. (d). Pub. L. 94–280 substituted ‘‘Federalaid highway funds’’ for ‘‘Federal-aid primary, secondary, or urban funds’’ and struck out 10 per centum limitation provision for any project financed with interstate funds.

1973—Subsec. (a). Pub. L. 93–87 authorized payments

to be made for materials not in the construction vicinity where the Secretary determines that because of required fabrication at an off-site location the materials

cannot be stockpiled in such vicinity.

1963—Subsec. (d). Pub. L. 88–157 substituted ‘‘any

project financed with Federal-aid primary, secondary,

or urban funds’’ for ‘‘any one project’’ and provided for

limitation, on payments for construction engineering

on projects financed with Federal-aid primary, secondary, or urban funds, of 15 percent of Federal share of

cost of construction of the project where found by the

Secretary to be necessary and for 10–percent limitation

on projects financed with interstate funds.

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.

SUBMISSION OF RECOMMENDATIONS TO CONGRESS FOR

REIMBURSEMENT OF STATES FOR CERTAIN HIGHWAYS

Pub. L. 85–845, Aug. 28, 1958, 72 Stat. 1083, required

Secretary of Commerce, within ten days after first day

of first session of Eighty-sixth Congress, to submit to

Congress recommendations for legislation for purpose

of assisting Congress to determine whether or not to

reimburse each State of any portion of a toll or free

highway (1) which was on National System of Interstate and Defense Highways [now Dwight D. Eisenhower System of Interstate and Defense Highways], (2)

which met standards required by Federal-Aid Highway

Act of 1956 for such System of Interstate and Defense

Highways, and (3) construction of which had been completed since Aug. 2, 1947, or which had been in actual

use or under construction by contract, for completion,

awarded not later than June 30, 1957.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 122 of this title.

§ 122. Payments to States for bond and other

debt instrument financing

(a) DEFINITION OF ELIGIBLE DEBT FINANCING INSTRUMENT.—In this section, the term ‘‘eligible

debt financing instrument’’ means a bond or

other debt financing instrument, including a

note, certificate, mortgage, or lease agreement,

issued by a State or political subdivision of a

State or a public authority, the proceeds of

which are used for an eligible project under this

title.

(b) FEDERAL REIMBURSEMENT.—Subject to subsections (c) and (d), the Secretary may reimburse a State for expenses and costs incurred by

the State or a political subdivision of the State

and reimburse a public authority for expenses

and costs incurred by the public authority for—

(1) interest payments under an eligible debt

financing instrument;

(2) the retirement of principal of an eligible

debt financing instrument;

(3) the cost of the issuance of an eligible

debt financing instrument;

(4) the cost of insurance for an eligible debt

financing instrument; and

(5) any other cost incidental to the sale of an

eligible debt financing instrument (as determined by the Secretary).

(c) CONDITIONS ON PAYMENT.—The Secretary

may reimburse a State or public authority

under subsection (b) with respect to a project

funded by an eligible debt financing instrument

after the State or public authority has complied

with this title with respect to the project to the

extent and in the manner that would be required

if payment were to be made under section 121.

(d) FEDERAL SHARE.—The Federal share of the

cost of a project payable under this section shall

not exceed the Federal share of the cost of the

project as determined under section 120.

(e) STATUTORY CONSTRUCTION.—Notwithstanding any other provision of law, the eligibility of

an eligible debt financing instrument for reimbursement under subsection (b) shall not—

(1) constitute a commitment, guarantee, or

obligation on the part of the United States to

provide for payment of principal or interest on

the eligible debt financing instrument; or

(2) create any right of a third party against

the United States for payment under the eligible debt financing instrument.

(Pub. L. 85–767, Aug. 27, 1958, 72 Stat. 900; Pub. L.

95–599, title I, §115(b), Nov. 6, 1978, 92 Stat. 2698;

Pub. L. 97–424, title I, §107(f), Jan. 6, 1983, 96

Stat. 2103; Pub. L. 100–17, title I, §133(b)(7), Apr.

2, 1987, 101 Stat. 171; Pub. L. 104–59, title III,

§311(a), Nov. 28, 1995, 109 Stat. 583.)

AMENDMENTS

1995—Pub. L. 104–59 amended section generally, substituting present provisions for provisions which authorized States to use portion of Federal highway payments to retire principal of bonds proceeds of which

were used for certain Federal highway projects.

1987—Pub. L. 100–17 inserted ‘‘or for substitute highway projects approved under section 103(e)(4) of this

title’’ before ‘‘and the retirement’’ in first sentence.

1983—Pub. L. 97–424 inserted ‘‘or for substitute highway projects approved under section 103(e)(4) of this

title,’’ after ‘‘highway systems in urban areas,’’ and ‘‘or

on highway projects approved under section 103(e)(4) of

this title’’ after ‘‘expenditure on such system’’.
§ 123 TITLE 23—HIGHWAYS Page 78

1978—Pub. L. 95–599 inserted provisions relating to

the retirement of bonds the proceeds of which were

used for program projects, provisions that section was

not to be construed as a commitment on the part of the

United States to pay the principal of any such bonds,

and provisions prohibiting inclusion of interest and incidental costs of bonds in estimated cost of completion.

PAYMENT OF INTEREST ON BONDS ISSUED PRIOR TO AND

AFTER NOVEMBER 6, 1978

Section 115(c) of Pub. L. 95–599 provided that: ‘‘No interest shall be paid under authority of section 122 of

title 23, United States Code, on any bonds issued prior

to the date of enactment of this Act [Nov. 6, 1978], unless such bonds were issued for projects which were

under construction on January 1, 1978. Interest on

bonds issued in any fiscal year by a State after the date

of enactment of this Act may be paid under authority

of section 122 of title 23, United States Code, only if (1)

such State was eligible to obligate funds of another

State under subsection (a) of this section during such

fiscal year and (2) the Secretary of Transportation certifies that such eligible State utilized, or will utilize,

to the fullest extent possible during such fiscal year its

authority to obligate funds under such subsection (a) of

this section [amending section 118(b) of this title]. No

interest shall be paid under section 122 of title 23,

United States Code, on that part of the proceeds of

bonds issued after the date of enactment of this Act

used to retire or otherwise refinance bonds issued prior

to such date.’’

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 101 of this title.

§ 123. Relocation of utility facilities

(a) When a State shall pay for the cost of relocation of utility facilities necessitated by the

construction of a project on any Federal-aid system, Federal funds may be used to reimburse

the State for such cost in the same proportion

as Federal funds are expended on the project.

Federal funds shall not be used to reimburse the

State under this section when the payment to

the utility violates the law of the State or violates a legal contract between the utility and

the State. Such reimbursement shall be made

only after evidence satisfactory to the Secretary

shall have been presented to him substantiating

the fact that the State has paid such cost from

its own funds with respect to Federal-aid highway projects for which Federal funds are obligated subsequent to April 16, 1958, for work, including relocation of utility facilities.

(b) The term ‘‘utility’’, for the purposes of this

section, shall include publicly, privately, and cooperatively owned utilities.

(c) The term ‘‘cost of relocation’’, for the purposes of this section, shall include the entire

amount paid by such utility properly attributable to such relocation after deducting therefrom any increase in the value of the new facility and any salvage value derived from the old

facility.

(Pub. L. 85–767, Aug. 27, 1958, 72 Stat. 900; Pub. L.

100–17, title I, §133(b)(8), Apr. 2, 1987, 101 Stat.

171.)

AMENDMENTS

1987—Subsec. (a). Pub. L. 100–17 substituted ‘‘any Federal-aid system,’’ for ‘‘the Federal-aid primary or secondary systems or on the Interstate System, including

extensions thereof within urban areas,’’.

§ 124. Advances to States

(a) If the Secretary shall determine that it is

necessary for the expeditious completion of

projects on any of the Federal-aid systems, including the Interstate System, he may advance

to any State out of any existing appropriations

the Federal share of the cost of construction

thereof to enable the State highway department

to make prompt payments for acquisition of

rights-of-way, and for the construction as it progresses. The sums so advanced shall be deposited

in a special revolving trust fund, by the State

official authorized under the laws of the State

to receive Federal-aid highway funds, to be disbursed solely upon vouchers approved by the

State highway department for rights-of-way

which have been or are being acquired, and for

construction which has been actually performed

and approved by the Secretary pursuant to this

chapter. Upon determination by the Secretary

that any part of the funds advanced to any State

under the provisions of this section are no

longer required, the amount of the advance,

which is determined to be in excess of current

requirements of the State, shall be repaid upon

his demand, and such repayments shall be returned to the credit of the appropriation from

which the funds were advanced. Any sum advanced and not repaid on demand shall be deducted from sums due the State for the Federal

pro rata share of the cost of construction of Federal-aid projects.

(b) Notwithstanding subsection (a) of this section, if the Secretary of Transportation determines that any toll bridge, toll tunnel, or approach thereto, which meets the requirements of

section 129 of this title is necessary to complete

an essential gap in the Interstate System then,

upon request of the State highway department,

the Secretary shall, at any time during construction of such bridge, tunnel, or approach and

for one year after it is opened to traffic, and

subject to the conditions and limitations of such

section 129, advance to such State 100 per centum of the cost of construction of such bridge,

tunnel, or approach. So much of the amount so

advanced that exceeds the Federal share of such

construction cost shall be repaid to the United

States as follows:

(1) 50 per centum within one year of the date

such bridge, tunnel, or approach is opened to

traffic,

(2) 25 per centum within two years of such

date of opening, and

(3) 25 per centum within three years of such

date of opening.

Any advance made to a State under this subsection shall be from the funds apportioned to

said State for the Interstate System. So much of

any advance made to a State under this subsection required to be repaid shall be repaid

with interest at a rate determined by the Secretary. If a State receives any advance under

this subsection with respect to any toll bridge,

tunnel, or approach thereto, then the provisions

of section 103(e)(4) of this title shall not apply to

such bridge, tunnel, or approach.

(Pub. L. 85–767, Aug. 27, 1958, 72 Stat. 901; Pub. L.

95–599, title I, §118, Nov. 6, 1978, 92 Stat. 2699.)