§ 118 TITLE 23—HIGHWAYS Page 68

1So in original. Probably should be ‘‘each of’’.

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.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 106, 112, 114 of

this title.

§ 118. Availability of funds

(a) DATE AVAILABLE FOR OBLIGATION.—Except

as otherwise specifically provided, authorizations from the Highway Trust Fund (other than

the Mass Transit Account) to carry out this

title shall be available for obligation on the date

of their apportionment or allocation or on October 1 of the fiscal year for which they are authorized, whichever occurs first.

(b) PERIOD OF AVAILABILITY; DISCRETIONARY

PROJECTS.—

(1) INTERSTATE CONSTRUCTION FUNDS.—Funds

apportioned or allocated for Interstate construction in a State (other than Massachusetts) shall remain available for obligation in

that State until the last day of the fiscal year

in which they are apportioned or allocated.

Sums not obligated by the last day of the fiscal year in which they are apportioned or allocated shall be allocated to other States, except Massachusetts, at the discretion of the

Secretary. All sums apportioned or allocated

on or after October 1, 1994, shall remain available in the State until expended. All sums apportioned or allocated to Massachusetts on or

after October 1, 1989, shall remain available

until expended.

(2) OTHER FUNDS.—Except as otherwise specifically provided, funds apportioned or allocated pursuant to this title (other than for

Interstate construction) in a State shall remain available for obligation in that State for

a period of 3 years after the last day of the fiscal year for which the funds are authorized.

Any amounts so apportioned or allocated that

remain unobligated at the end of that period

shall lapse.

(c) SET ASIDES FOR INTERSTATE DISCRETIONARY

PROJECTS.—

(1) SET ASIDE FOR CONSTRUCTION PROJECTS.—

Before any apportionment is made under section 104(b)(5)(A) of this title for a fiscal year

beginning after September 30, 1992, the Secretary shall set aside $100,000,000. Subject to

section 149(d) of the Federal-Aid Highway Act

of 1987, such amount shall be available only

for obligation by the Secretary in accordance

with subsection (b)(2) of this section.

(2) SET ASIDE FOR 4R PROJECTS.—

(A) IN GENERAL.—Before any apportionment is made under section 104(b)(1) of this

title, the Secretary shall set aside $54,000,000

for fiscal year 1992, $64,000,000 for each1 fiscal

years 1993, 1994, 1995, and 1996, and $65,000,000

for fiscal year 1997 for obligation by the Secretary for projects for resurfacing, restoring,

rehabilitating, and reconstructing any route

or portion thereof on the Interstate System

(other than any highway designated as a

part of the Interstate System under section

139 and any toll road on the Interstate System not subject to an agreement under section 119(e) of this title, as in effect on the

day before the date of the enactment of the

Intermodal Surface Transportation Efficiency Act of 1991). Of the amounts set aside

under the preceding sentence, the Secretary

shall obligate $16,000,000 for fiscal year 1992

and $17,000,000 for each of fiscal years 1993

and 1994 for improvements on the Kennedy

Expressway in Chicago, Illinois. The remainder of such funds shall be made available by

the Secretary to any State applying for such

funds, if the Secretary determines that—

(i) the State has obligated or demonstrates that it will obligate in the fiscal

year all of its apportionments under section 104(b)(1) other than an amount which,

by itself, is insufficient to pay the Federal

share of the cost of a project for resurfacing, restoring, rehabilitating, and reconstructing the Interstate System which

has been submitted by the State to the

Secretary for approval; and

(ii) the applicant is willing and able to

(I) obligate the funds within 1 year of the

date the funds are made available, (II)

apply them to a ready-to-commence

project, and (III) in the case of construction work, begin work within 90 days of obligation.

(B) PRIORITY CONSIDERATION FOR CERTAIN

PROJECTS.—In selecting projects to fund

under subparagraph (A), the Secretary shall

give priority consideration to any project

the cost of which exceeds $10,000,000 on any

high volume route in an urban area or a high

truck-volume route in a rural area.

(C) PERIOD OF AVAILABILITY OF DISCRETIONARY FUNDS.—Sums made available pursuant to this paragraph shall remain available until expended.

(d) In addition to amounts otherwise available

to carry out this section, an amount equal to

the amount by which the unobligated apportionment for the Interstate System in any State is

reduced under section 103(e)(4) of this title on

account of the withdrawal of a route or portion

thereof on the Interstate System, which withdrawal is approved after the date of enactment

of this subsection, shall be available to the Secretary for obligation in accordance with subsection (b)(1) of this section.

(e) The total payments to any State shall not

at any time during a current fiscal year exceed

the total of all apportionments to such State in

accordance with section 104 of this title for such

fiscal year and all preceding fiscal years.

(f) Funds made available to the State of Alaska and the Commonwealth of Puerto Rico under

this title may be expended for construction of

access and development roads that will serve resource development, recreational, residential,

commercial, industrial, or other like purposes.

(Pub. L. 85–767, Aug. 27, 1958, 72 Stat. 897; Pub. L.

89–574, §7(a), Sept. 13, 1966, 80 Stat. 768; Pub. L.

94–280, title I, §117(a), May 5, 1976, 90 Stat. 436;

Pub. L. 95–599, title I, §115(a), Nov. 6, 1978, 92

Stat. 2697; Pub. L. 96–106, §5(a), Nov. 9, 1979, 93
Page 69 TITLE 23—HIGHWAYS § 118

Stat. 797; Pub. L. 97–424, title I, §115, Jan. 6, 1983,

96 Stat. 2107; Pub. L. 100–17, title I, §§114(a)–(c),

(e)(2)–(4), 115, Apr. 2, 1987, 101 Stat. 150–153; Pub.

L. 102–240, title I, §1020, Dec. 18, 1991, 105 Stat.

1948; Pub. L. 102–388, title IV, §409, Oct. 6, 1992,

106 Stat. 1565.)

REFERENCES IN TEXT

Section 149(d) of the Federal-Aid Highway Act of 1987,

referred to in subsec. (c)(1), is section 149(d) of Pub. L.

100–17, which is not classified to the Code.

The date of the enactment of the Intermodal Surface

Transportation Efficiency Act of 1991, referred to in

subsec. (c)(2)(A), is the date of enactment of Pub. L.

102–240, which was approved Dec. 18, 1991.

The date of the enactment of this subsection, referred

to in subsec. (d), is the date of the enactment of Pub.

L. 97–424, which was approved Jan. 6, 1983.

AMENDMENTS

1992—Subsec. (b)(1). Pub. L. 102–388 substituted ‘‘construction in a State (other than Massachusetts)’’ for

‘‘construction in a State’’ and ‘‘after October 1, 1989’’

for ‘‘before October 1, 1989’’.

1991—Subsec. (a). Pub. L. 102–240, §1020(a), added subsec. (a) and struck out former subsec. (a) which read as

follows: ‘‘On and after the date that the Secretary has

certified to each State highway department the sums

apportioned to each Federal-aid system or part thereof

pursuant to an authorization under this title, or under

prior Acts, such sums shall be available for expenditure

under the provisions of this title.’’

Subsec. (b). Pub. L. 102–240, §1020(a), added subsec. (b)

and struck out former subsec. (b) which contained provisions relating to periods of availability of non-Interstate funds, Interstate construction funds, and funds

for resurfacing, restoring, rehabilitating and reconstructing Interstate System, and provisions deeming

obligation of funds as equivalent to expenditure and relating to effect of release of funds.

Subsec. (c)(1). Pub. L. 102–240, §1020(b)(1), (2), substituted ‘‘1992’’ for ‘‘1983’’ and ‘‘$100,000,000’’ for

‘‘$300,000,000’’.

Subsec. (c)(2). Pub. L. 102–240, §1020(b)(3), added par.

(2) and struck out former par. (2) which read as follows:

‘‘SET ASIDE FOR 4R PROJECTS.—Before any apportionment is made under section 104(b)(5)(B) of this title, the

Secretary shall set aside $200,000,000 for obligation by

the Secretary in accordance with subsection (b)(3) of

this section and subject to section 149(d) of the FederalAid Highway Act of 1987.’’

Subsec. (d). Pub. L. 102–240, §1020(c), substituted

‘‘(b)(1)’’ for ‘‘(b)(2)’’.

Subsec. (f). Pub. L. 102–240, §1020(d), struck out ‘‘on a

Federal-aid system’’ after ‘‘roads’’.

1987—Pub. L. 100–17, §114(e)(2), substituted ‘‘Availability of funds’’ for ‘‘Availability of sums apportioned’’ in

section catchline.

Subsec. (b). Pub. L. 100–17, §114(e)(3)(A), inserted

heading.

Subsec. (b)(1). Pub. L. 100–17, §114(e)(3)(B), (D), inserted heading and aligned par. (1) with par. (2) as

amended.

Subsec. (b)(2). Pub. L. 100–17, §114(a), amended par. (2)

generally, revising and restating as subpars. (A) to (F)

provisions formerly contained in an undivided paragraph.

Subsec. (b)(3). Pub. L. 100–17, §114(c), amended par. (3)

generally, revising and restating as subpars. (A) to (D)

provisions formerly contained in an undivided paragraph.

Subsec. (b)(4). Pub. L. 100–17, §114(e)(3)(C), (D), inserted heading and aligned par. (4) with par. (2) as

amended.

Subsec. (c). Pub. L. 100–17, §114(b), (e)(4), inserted

heading, designated existing provisions as par. (1), inserted par. (1) heading, substituted ‘‘Subject to section

149(d) of the Federal-Aid Highway Act of 1987, such

amount’’ for ‘‘Such amount’’ in par. (1), added par. (2),

and aligned par. (1) with par. (2).

Subsec. (f). Pub. L. 100–17, §115, inserted ‘‘and the

Commonwealth of Puerto Rico’’ after ‘‘the State of

Alaska’’.

1983—Subsec. (b). Pub. L. 97–424, §115(a), designated

existing provisions as pars. (1) through (4), in par. (2) as

so designated, substituted ‘‘for projects on the Interstate System (other than projects for which sums are

apportioned under section 104(b)(5)(B)) in accordance

with the following priorities: First, for high cost

projects which directly contribute to the completion of

an Interstate segment which is not open to traffic; and

second, for projects of high cost in relation to a State’s

apportionment. Sums may only be made available

under this paragraph in any State’’ for ‘‘to any other

State applying for such funds for the Interstate System,’’ after ‘‘available by the Secretary’’, struck out

former cl. (1), which had required readiness to obligate

funds within one year of the date the funds are made

available, redesignated former cls. (2) and (3) as (A) and

(B), respectively; and in par. (3) as so designated,

struck out ‘‘and any amounts so apportioned remaining

unexpended at the end of such period shall lapse’’ after

‘‘such sums are authorized’’, inserted provision relating

to the disposition of funds not obligated within the prescribed time period, and inserted further provision that

sums made available under this paragraph shall remain

available until expended.

Subsecs. (c) to (f). Pub. L. 97–424, §115(b), added subsecs. (c) and (d) and redesignated former subsecs. (c)

and (d) as (e) and (f), respectively.

1979—Subsec. (b). Pub. L. 96–106 substituted ‘‘shall

continue to be available for expenditure in that State

for a period of two years after the close of the fiscal

year for which such sums are authorized and any

amounts so apportioned remaining unexpended at the

end of such period shall lapse’’ for ‘‘remaining unexpended at the end of the period of its availability shall

lapse’’.

1978—Subsec. (b). Pub. L. 95–599 substituted provisions relating to the availability of funds until the end

of the fiscal year for provisions relating to the availability of funds until two years after the close of the

fiscal year and substituted provisions establishing requirements for eligibility for funds for provisions calling for immediate reapportionment of unexpended

funds.

1976—Subsec. (b). Pub. L. 94–280, in revising text, provided for a separate three year period of availability of

sums apportioned to a Federal-aid system (other than

the Interstate System), increased from the previously

applicable two year period; continued the existing two

year period for sums apportioned to the Interstate System; substituted provision for reapportionment of

sums, apportioned to the States for the Interstate System under section 104(b)(4)(A), under section

104(b)(5)(A) of this title and for lapse of sums apportioned to the Interstate System under section

104(b)(4)(B) of this title for prior provision for reapportionment of sums, apportioned to the States for the

Interstate System under section 104(b)(4) and (5), under

section 104(b)(5) of this title; and substituted provisions

deeming there to be an expenditure of sums apportioned to a Federal-aid system if a sum equal to the

total of the sums apportioned to the State for the fiscal

year and previous fiscal years is obligated for prior provision deeming an expenditure to exist if a sum equal

to the total of the sums apportioned to the States for

the fiscal year and previous fiscal years is covered by

formal project agreements providing for the expenditure of funds authorized by each Act which contains

provisions authorizing the appropriation of funds for

Federal-aid highways.

1966—Subsec. (d). Pub. L. 89–574 added subsec. (d).

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
§ 119 TITLE 23—HIGHWAYS Page 70

1So in original. Probably should be capitalized.

1100 of Pub. L. 102–240, set out as a note under section

104 of this title.

EFFECTIVE DATE OF 1979 AMENDMENT

Section 5(b) of Pub. L. 96–106 provided that: ‘‘The

amendment made by subsection (a) of this section

[amending this section] shall apply to all amounts apportioned under section 104(b)(5)(B) of title 23, United

States Code, for the fiscal year 1978 and for subsequent

fiscal years.’’

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 104, 114, 127, 143,

157, 158, 159 of this title; title 40 section 818; title 40

App. section 201; title 49 section 31314.

§ 119. Interstate maintenance program

(a) The Secretary may approve projects for resurfacing, restoring and rehabilitating routes on

the Interstate System designated under sections

103 and 139(c) of this title and routes on the

Interstate System designated before the date of

enactment of this sentence under section 139(a)

and (b) of this title; except that the Secretary

may only approve a project pursuant to this subsection on a toll road if such road is subject to

a Secretarial agreement provided for in subsection (e). Sums authorized to be appropriated

for this section shall be out of the Highway

Trust Fund and shall be apportioned in accordance with section 104(b)(5)(B) of this title.

(b) Not later than one year after the date of issuance of initial guidelines under section 109(m)

of this title each State shall have a program for

the Interstate system1 in accordance with such

guidelines. Each State shall certify on January

1st of each year that it has such a program and

the Interstate system1 is maintained in accordance with that program. If a State fails to certify as required or if the Secretary determines a

State is not adequately maintaining the Interstate system1 in accordance with such program

then the next apportionment of funds to such

State for the Interstate system1 shall be reduced by amounts equal to 10 per centum of the

amount which would otherwise be apportioned

to such State under section 104 of this title. If,

within one year from the date the apportionment for a State is reduced under this subsection, the Secretary determines that such

State is maintaining the Interstate system1 in

accordance with the guidelines the apportionment of such State shall be increased by an

amount equal to the reduction. If the Secretary

does not make such a determination within such

one year period the amount so withheld shall be

reapportioned to all other eligible States.

(c) ELIGIBLE ACTIVITIES.—Activities authorized

in subsection (a) may include the reconstruction

of bridges, interchanges, and over crossings

along existing Interstate routes, including the

acquisition of right-of-way where necessary, but

shall not include the construction of new travel

lanes other than high occupancy vehicle lanes or

auxiliary lanes.

(d) TRANSFER OF INTERSTATE CONSTRUCTION

APPORTIONMENTS.—Upon application by a State

(other than the State of Massachusetts) and approval by the Secretary, the Secretary may

transfer to the apportionments to such State

under section 104(b)(1) or 104(b)(5)(B) any

amount of the funds apportioned to such State

for any fiscal year under section 104(b)(5)(A) if

such amount does not exceed the Federal share

of the costs of construction of segments of the

Interstate System open to traffic in such State

(other than high occupancy vehicle lanes) included in the most recent interstate cost estimate. Upon transfer of such amount, the construction on which such amount is based on

open-to-traffic segments of the Interstate System in such State as included in the latest

interstate cost estimate shall be ineligible and

shall not be included in future interstate cost

estimates approved or adjusted under section

104(b)(5)(A).

(e) PREVENTIVE MAINTENANCE.—Preventive

maintenance activities shall be eligible under

this section when a State can demonstrate,

through its pavement management system, that

such activities are a cost-effective means of extending Interstate pavement life.

(f) TRANSFER OF FUNDS FOR SURFACE TRANSPORTATION PROGRAM PROJECTS.—

(1) UPON CERTIFICATION ACCEPTANCE.—If a

State certifies to the Secretary that any part

of the sums apportioned to the State under

section 104(b)(5)(B) of this title are in excess of

the needs of the State for resurfacing, restoring, or rehabilitating Interstate System

routes and the State is adequately maintaining the Interstate System and the Secretary

accepts such certification, the State may

transfer such excess part to its apportionment

under sections 104(b)(1) and 104(b)(3).

(2) UNCONDITIONAL.—Notwithstanding paragraph (1), a State may transfer to its apportionment under sections 104(b)(1) and 104(b)(3)

of this title—

(A) in fiscal year 1987, an amount not to

exceed 20 percent of the funds apportioned to

the State under section 104(b)(5)(B) which

are not obligated at the time of the transfer;

and

(B) in any fiscal year thereafter, an

amount not to exceed 20 percent of the funds

apportioned to the State under section

104(b)(5)(B) for such fiscal year.

(g) LIMITATION ON NEW CAPACITY.—Notwithstanding any other provision of this title, the

portion of the cost of any project undertaken

pursuant to this section that is attributable to

the expansion of the capacity of any Interstate

highway or bridge, where such new capacity consists of one or more new travel lanes that are

not high-occupancy vehicle lanes or auxiliary

lanes, shall not be eligible for funding under this

section.

(Added Pub. L. 95–599, title I, §116(a), Nov. 6,

1978, 92 Stat. 2698; amended Pub. L. 96–106, §18,

Nov. 9, 1979, 93 Stat. 799; Pub. L. 97–134, §§6, 7,

Dec. 29, 1981, 95 Stat. 1701; Pub. L. 97–424, title I,

§116(a)(1), (2), (b), (c), Jan. 6, 1983, 96 Stat. 2109;

Pub. L. 98–229, §8(b), Mar. 9, 1984, 98 Stat. 56;

Pub. L. 99–190, §101(e) [title III, §327], Dec. 19,

1985, 99 Stat. 1267, 1289; Pub. L. 100–17, title I,

§116(a)–(c)(1), Apr. 2, 1987, 101 Stat. 154, 155; Pub.

L. 100–202, §101(l) [title III, §347(b)], Dec. 22, 1987,

101 Stat. 1329–358, 1329–388; Pub. L. 102–240, title

I, §1009(a), (b), (e)(1), (3)–(5), Dec. 18, 1991, 105

Stat. 1933, 1934.)