Page 53 TITLE 23—HIGHWAYS § 109

This Act, referred to in subsec. (d)(2)(F), probably

means Pub. L. 102–240, Dec. 18, 1991, 105 Stat. 1914,

known as the Intermodal Surface Transportation Efficiency Act of 1991. For complete classification of this

Act to the Code, see Short Title of 1991 Amendment

note set out under section 101 of Title 49, Transportation, and Tables.

Section 7 of the Endangered Species Act, referred to

in subsec. (d)(2)(F), probably means section 7 of the Endangered Species Act of 1973, which is classified to section 1536 of Title 16, Conservation.

AMENDMENTS

1994—Subsec. (d)(2)(F). Pub. L. 103–429 substituted

‘‘section 303 of title 49’’ for ‘‘section 4(f) of the Department of Transportation Act’’.

1992—Subsec. (a). Pub. L. 102–388, §346(1), (2), substituted ‘‘Federal-aid highway’’ for ‘‘of the Federal-aid

highway systems, including the Interstate System,’’

and ‘‘which may be expended on such highway’’ for ‘‘for

expenditure on any of the Federal-aid highway systems, including the Interstate System,’’.

Subsec. (c)(2). Pub. L. 102–388, §346(3), inserted ‘‘and

passenger transit facilities’’.

Subsec. (c)(3). Pub. L. 102–388, §346(5), which directed

the substitution of ‘‘of the type funded’’ for ‘‘on the

federal-aid system of which such project is to be part,’’

was executed by making the substitution for ‘‘on the

Federal-aid system of which such project is to be a

part,’’ to reflect the probable intent of Congress.

Pub. L. 102–388, §346(4), substituted ‘‘project’’ for

‘‘highway’’ after ‘‘construction of a’’ in first and second

sentences.

1991—Subsecs. (a), (c)(3). Pub. L. 102–240, §1017(a), substituted ‘‘20’’ for ‘‘ten’’.

Subsec. (d). Pub. L. 102–240, §1017(b), added subsec. (d).

1976—Subsec. (a). Pub. L. 94–280, §115(b), inserted ‘‘unless a longer period is determined to be reasonable by

the Secretary’’ after ‘‘request is made’’ in last sentence.

Subsec. (c)(2). Pub. L. 94–280, §115(a), struck out

‘‘made pursuant to section 133 or chapter 5 of this

title’’ after ‘‘relocation payments’’ in last sentence.

Subsec. (c)(3). Pub. L. 94–280, §115(c), inserted ‘‘or

later’’ after ‘‘earlier’’ in first sentence.

1973—Subsec. (a). Pub. L. 93–87, §113(a), substituted

‘‘ten’’ for ‘‘seven’’ years in last sentence.

Subsec. (c)(3). Pub. L. 93–87, §113(b), substituted ‘‘ten’’

for ‘‘seven’’ years in first sentence.

1968—Subsec. (b). Pub. L. 90–495, §7(a), substituted

‘‘subsection (a) of this section’’ for ‘‘this section’’.

Subsec. (c). Pub. L. 90–495, §7(b), added subsec. (c).

1959—Subsec. (a). Pub. L. 86–35 increased from five to

seven years the period in which actual construction

shall commence on rights-of-way acquired in anticipation of such construction.

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 1968 AMENDMENT

Amendment by Pub. L. 90–495 effective Aug. 23, 1968,

see section 37 of Pub. L. 90–495, set out as a note under

section 101 of this title.

PRESERVATION OF TRANSPORTATION CORRIDORS REPORT

Section 1017(c) of Pub. L. 102–240 provided that: ‘‘The

Secretary, in consultation with the States, shall report

to Congress within 2 years after the date of the enactment of this Act [Dec. 18, 1991], a national list of the

rights-of-way identified by the metropolitan planning

organizations and the States (under sections 134 and 135

of title 23, United States Code), including the total

mileage involved, an estimate of the total costs, and a

strategy for preventing further loss of rights-of-way including the desirability of creating a transportation

right-of-way land bank to preserve vital corridors.’’

AUTHORIZATION OF APPROPRIATIONS TO RIGHT-OF-WAY

REVOLVING FUND; APPORTIONMENT; REVERSION OF

AMOUNTS NOT ADVANCED OR OBLIGATED

Section 7(c)–(e) of Pub. L. 90–495 provided that

$100,000,000 for the fiscal year ending June 30, 1970,

$100,000,000 for the fiscal year ending June 30, 1971, and

$100,000,000 for the fiscal year ending June 30, 1972, be

transferred from the highway trust fund to the rightof-way revolving fund established by subsec. (c) of this

section, authorized the Secretary to apportion these

funds and required that funds apportioned to a State

remain available for obligation for advances until Oct.

1 of the fiscal year in which the apportionment was

made and any funds not advanced or obligated by such

date revert to the right-of-way revolving fund for distribution to other States.

STUDY OF ADVANCE ACQUISITION OF RIGHTS-OF-WAY

Pub. L. 89–574, §10, Sept. 13, 1966, 80 Stat. 769, as

amended by Pub. L. 97–449, §2(a), Jan. 12, 1983, 96 Stat.

2439, directed the Secretary to make a full and complete investigation and study of the advance acquisition of rights-of-way for future construction of highways on the Federal-aid highway systems, with particular reference to the provision of adequate time for

the removal and disposal of improvements located on

rights-of-way and the relocation of affected individuals,

businesses, institutions, and organizations, the tax

status of such property after acquisition and before its

use for highway purposes, and the methods for financing advance right-of-way acquisition by both the State

governments and the Federal Government, including

the possible creation of revolving funds for such purpose. The Secretary was required to submit a report of

results of such study to Congress not later than July 1,

1967, together with his recommendations.

INCREASED LIMITATION PERIOD APPLICABLE TO CERTAIN

CONTRACTS

Section 2 of Pub. L. 86–35 provided that agreements

entered into before May 29, 1959 by the Secretary of

Commerce and a State highway department under authority of section 110(a) of the Federal-Aid Highway

Act of 1956, or section 108(a) of title 23 of the United

States Code shall be deemed to provide for actual construction of a road on such rights-of-way within a period of seven years following the fiscal year in which

such request was made.

§ 109. Standards

(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 highway departments. Such

standards, as applied to each actual construction project, shall be adequate to enable such

project to accommodate the types and volumes
§ 109 TITLE 23—HIGHWAYS Page 54

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) may take into account, 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; and

(C) access for other modes of transportation.

(2) DEVELOPMENT OF CRITERIA.—The Secretary, in cooperation with State highway departments, may develop criteria to implement

paragraph (1). In developing criteria under this

paragraph, the Secretary shall consider 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.

(d) 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 highway department with the concurrence of the Secretary, who is directed to concur

only in such installations as will promote the

safe and efficient utilization of the highways.

(e) 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.

(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, 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) The Secretary shall issue within 30 days

after the day of enactment of the Federal-Aid

Highway Act of 1970 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 values 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.
Page 55 TITLE 23—HIGHWAYS § 109

(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) 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.

(n) 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.

(o) 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.

(p) COMPLIANCE WITH STATE LAWS FOR NONNHS PROJECTS.—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.

(q) 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).

(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.)

REFERENCES IN TEXT

The day of enactment of the Federal-Aid Highway

Act of 1970, referred to in subsec. (g), is Dec. 31, 1970.

AMENDMENTS

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 implemen-
§ 109 TITLE 23—HIGHWAYS Page 56

tation 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’’.

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.

METRIC REQUIREMENTS

Section 205(c) of Pub. L. 104–59 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.—Before September 30, 2000, 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

Section 339(b) of Pub. L. 104–59 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

Section 359(b) of Pub. L. 104–59 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

Section 1038 of Pub. L. 102–240, 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
Page 57 TITLE 23—HIGHWAYS § 109

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

Section 1049 of Pub. L. 102–240 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

Section 1057 of title I of Pub. L. 102–240 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

Section 1058 of Pub. L. 102–240, 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 21

⁄2 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.
§ 110 TITLE 23—HIGHWAYS Page 58

‘‘(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

Section 1073 of Pub. L. 102–240 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, minivans, 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

Section 110(b), (c) of Pub. L. 97–424 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

Section 144 of Pub. L. 95–599, 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.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 104, 106, 115, 117,

119, 142 of this title.

§ 110. Project agreements

(a) As soon as practicable after the plans,

specifications, and estimates for a specific

project have been approved, the Secretary shall

enter into a formal project agreement with the

State highway department concerning the construction and maintenance of such project. Such

project agreement shall make provision for

State funds required for the State’s pro rata

share of the cost of construction of such project

and for the maintenance thereof after completion of construction.

(b) The Secretary may rely upon representations made by the State highway department

with respect to the arrangements or agreements

made by the State highway department and appropriate local officials where a part of the

project is to be constructed at the expense of, or

in cooperation with, local subdivisions of the

State.

(Pub. L. 85–767, Aug. 27, 1958, 72 Stat. 894.)

SECTION REFERRED TO IN OTHER SECTIONS

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

§ 111. Agreements relating to use of and access to

rights-of-way—Interstate System

(a) IN GENERAL.—All agreements between the

Secretary and the State highway department for

the construction of projects on the Interstate

System shall contain a clause providing that the

State will not add any points of access to, or

exit from, the project in addition to those approved by the Secretary in the plans for such

project, without the prior approval of the Secretary. Such agreements shall also contain a

clause providing that the State will not permit

automotive service stations or other commercial establishments for serving motor vehicle

users to be constructed or located on the rights-