I 

112TH CONGRESS 

1ST SESSION H. R. 2766 

To amend titles 23 and 49, United States Code, to accelerate the delivery 

process for highway and public transportation construction projects, and 

for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

AUGUST 1, 2011 

Mr. GARY G. MILLER of California (for himself and Mr. HUNTER) introduced 

the following bill; which was referred to the Committee on Transportation 

and Infrastructure 

A BILL 

To amend titles 23 and 49, United States Code, to accelerate 

the delivery process for highway and public transportation construction projects, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

4 (a) SHORT TITLE.—This Act may be cited as the 

5 ‘‘Breaking Down Barriers Act of 2011’’. 

6 (b) TABLE OF CONTENTS.— 

Sec. 1. Short title; table of contents. 

Sec. 2. Advance construction of highway projects. 

Sec. 3. Surface transportation project delivery pilot program. 

Sec. 4. Methods to consolidate and streamline environmental impact statement 

processing. 


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Sec. 5. Categorical exclusions. 

Sec. 6. Administration of highway and public transportation projects with high 

non-Federal shares. 

Sec. 7. Requirements for prompt payments and approvals by the Secretary of 

Transportation. 

Sec. 8. Assistance to State and Federal agencies. 

1 SEC. 2. ADVANCE CONSTRUCTION OF HIGHWAY PROJECTS. 

2 (a) FINDING.—Congress finds that it is in the public 

3 interest for the Secretary of Transportation to allow 

4 States to carry out advance construction activities under 

5 section 115 of title 23, United States Code, as a method 

6 for accelerating the delivery of highway projects and cre7 ating jobs. 

8 (b) PREAPPROVAL SPENDING; LETTERS OF NO

9 PREJUDICE.—Section 115 of title 23, United States Code, 

10 is amended by adding at the end the following: 

11 ‘‘(d) PREAPPROVAL SPENDING.—In approving an ap12 plication for a project under this section, the Secretary 

13 may include as part of the project activities carried out 

14 by the State before the date of approval of the application 

15 if the Secretary determines that the activities were carried 

16 out in accordance with the requirements applicable to the 

17 project. 

18 ‘‘(e) LETTERS OF NO PREJUDICE.— 

19 ‘‘(1) ISSUANCE.—The Secretary may issue let20 ters of no prejudice for projects under this section 

21 in the same manner as the Secretary issues such letVerDate Mar 15 2010 05:38 Aug 03, 2011 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H2766.IH H2766

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1 ters for public transportation projects under sections 

2 5307 and 5309 of title 49. 

3 ‘‘(2) TIMING.—To accelerate project delivery, 

4 the Secretary may issue a letter of no prejudice for 

5 a project at the time the project is included in the 

6 transportation improvement program of the State 

7 developed under section 135(f) or as soon as prac8 ticable thereafter.’’. 

9 SEC. 3. SURFACE TRANSPORTATION PROJECT DELIVERY 

10 PILOT PROGRAM. 

11 Section 327 of title 23, United States Code, is 

12 amended— 

13 (1) in the section heading by striking ‘‘pilot’’; 

14 (2) in subsection (a)(1) by striking ‘‘pilot’’; 

15 (3) in subsection (a)(2)— 

16 (A) in subparagraph (B) by striking clause 

17 (ii) and inserting the following: 

18 ‘‘(ii) the Secretary may not assign any 

19 responsibility imposed on the Secretary by 

20 section 134 or 135.’’; and 

21 (B) by adding at the end the following: 

22 ‘‘(F) PRESERVATION OF FLEXIBILITY.— 

23 The Secretary shall not require a State, as a 

24 condition of participation in this program, to 


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1 forego project delivery methods that are other2 wise permissible for highway projects. 

3 ‘‘(G) HIGHWAY PROJECT.—A highway 

4 project under subparagraph (A) includes any 

5 project eligible under this title. With respect to 

6 such a project, a State may assume the respon7 sibilities administered by the Federal Highway 

8 Administration, but the State may not assume 

9 the responsibilities of any other modal adminis10 tration within the Department.’’; 

11 (4) in subsection (b)— 

12 (A) by striking paragraph (1) and insert13 ing the following: 

14 ‘‘(1) PARTICIPATING STATES.— 

15 ‘‘(A) IN GENERAL.—All States are eligible 

16 to participate in the program. 

17 ‘‘(B) SPECIAL RULE.—Any State partici18 pating in the program under this section on 

19 September 30, 2009, shall be permitted by the 

20 Secretary to continue to participate in the pro21 gram and such State shall not have to submit 

22 an application under paragraph (2) in order to 

23 participate in the program.’’; and 

24 (B) in paragraph (2) by striking ‘‘this sec25 tion, the Secretary shall promulgate’’ and inVerDate Mar 15 2010 05:38 Aug 03, 2011 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H2766.IH H2766

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1 serting ‘‘the Breaking Down Barriers Act of 

2 2011, the Secretary shall modify, as appro3 priate,’’; and 

4 (5) by striking subsection (i) and inserting the 

5 following: 

6 ‘‘(i) TERMINATION.—The Secretary may terminate 

7 the participation of any State in the program if— 

8 ‘‘(1) the Secretary determines that the State is 

9 not adequately carrying out the responsibilities as10 signed to the State; 

11 ‘‘(2) the Secretary provides to the State— 

12 ‘‘(A) notification of the determination of 

13 noncompliance; and 

14 ‘‘(B) a period of at least 30 days during 

15 which to take such corrective action as the Sec16 retary determines is necessary to comply with 

17 the applicable agreement; and 

18 ‘‘(3) the State, after the notification and period 

19 provided under paragraph (2), fails to take satisfac20 tory corrective action, as determined by Secretary.’’. 

21 SEC. 4. METHODS TO CONSOLIDATE AND STREAMLINE EN22 VIRONMENTAL IMPACT STATEMENT PROC23 ESSING. 

24 (a) STUDY.—The Comptroller General of the United 

25 States shall conduct a study on methods to consolidate 


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1 and streamline the environmental impact statement proc2 ess as the process applies to the construction of Federal3 aid highway and highway safety construction projects and 

4 public transportation projects. 

5 (b) CONTENTS.—The study shall focus on current 

6 procedures for environmental impact statements and the 

7 feasibility modernizing those procedures to include new 

8 media and other communication techniques. 

9 (c) REPORT TO CONGRESS.—Not later than 270 days 

10 after the date of enactment of this Act, the Comptroller 

11 General shall submit to Congress a report on the results 

12 of the study. 

13 SEC. 5. CATEGORICAL EXCLUSIONS. 

14 (a) RECOMMENDATIONS FOR EXPANDING LIST OF

15 CATEGORICAL EXCLUSIONS.—The Secretary of Transpor16 tation, in consultation with the Administrator of the Fed17 eral Highway Administration and the Administrator of the 

18 Federal Transit Administration, shall develop rec19 ommendations for expanding the list of activities that are 

20 included within classes of action, identified in regulation 

21 by the Secretary, that are categorically excluded from re22 quirements for environmental assessments or environ23 mental impact statements pursuant to regulations promul24 gated by the Council on Environmental Quality under part 

25 1500 of title 40, Code of Federal Regulations. 


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1 (b) PARTICIPATION OF RECIPIENTS.—In developing 

2 the recommendations, the Secretary shall solicit comments 

3 from States and other recipients of assistance under title 

4 23, United States Code, and chapter 53 of title 49, United 

5 States Code. 

6 (c) REPORT TO CONGRESS.—Not later than 180 days 

7 after the date of enactment of this Act, the Secretary shall 

8 submit to Congress a report on the recommendations de9 veloped under subsection (a). 

10 SEC. 6. ADMINISTRATION OF HIGHWAY AND PUBLIC 

11 TRANSPORTATION PROJECTS WITH HIGH 

12 NON-FEDERAL SHARES. 

13 (a) HIGHWAY PROJECTS.—Section 106 of title 23, 

14 United States Code, is amended by adding at the end the 

15 following: 

16 ‘‘(j) ADMINISTRATION OF PROJECTS WITH HIGH

17 NON-FEDERAL SHARES.— 

18 ‘‘(1) DELEGATION OF FEDERAL RESPONSIBIL19 ITIES.—In carrying out subsection (b), the Secretary 

20 may enter into an agreement to permit a State to 

21 assume all of the responsibilities of the Secretary for 

22 a project funded using amounts apportioned to the 

23 State under this title if the State certifies that— 


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1 ‘‘(A) the project will be carried in accord2 ance with the requirements applicable to the 

3 project; and 

4 ‘‘(B) at least two-thirds of the total cost of 

5 the project will be derived from State funds. 

6 ‘‘(2) TERMINATION OF AGREEMENTS.—The 

7 Secretary may terminate an agreement entered into 

8 for a project under paragraph (1) if the Secretary 

9 determines that a requirement applicable to the 

10 project is not being met.’’. 

11 (b) PUBLIC TRANSPORTATION PROJECTS.—Section 

12 5334 of title 49, United States Code, is amended by add13 ing at the end the following: 

14 ‘‘(m) ADMINISTRATION OF PROJECTS WITH HIGH

15 NON-FEDERAL SHARES.— 

16 ‘‘(1) DELEGATION OF FEDERAL RESPONSIBIL17 ITIES.—The Secretary may enter into an agreement 

18 to permit a recipient of funds under section 5307 or 

19 5311 to assume all of the responsibilities of the Sec20 retary for a project funded using such funds if the 

21 recipient certifies that— 

22 ‘‘(A) the project will be carried in accord23 ance with the requirements applicable to the 

24 project; and 


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1 ‘‘(B) at least two-thirds of the total cost of 

2 the project will be derived from non-Federal 

3 sources. 

4 ‘‘(2) TERMINATION OF AGREEMENTS.—The 

5 Secretary may terminate an agreement entered into 

6 for a project under paragraph (1) if the Secretary 

7 determines that a requirement applicable to the 

8 project is not being met.’’. 

9 SEC. 7. REQUIREMENTS FOR PROMPT PAYMENTS AND AP10 PROVALS BY THE SECRETARY OF TRANSPOR11 TATION. 

12 (a) EXTENSION OF HIGHWAY PROMPT PAYMENT

13 PROGRAM TO OTHER DOT PROGRAMS.—The Secretary of 

14 Transportation shall extend the prompt payment program 

15 that applies to Federal-aid highway and highway safety 

16 construction projects to cover other transportation con17 struction projects for which funding is provided by the 

18 Secretary. 

19 (b) DEADLINES FOR FEDERAL APPROVAL AC20 TIONS.— 

21 (1) REGULATIONS.—The Secretary of Trans22 portation shall issue regulations to establish dead23 lines for Federal actions relating to the approval of 

24 projects under title 23, United States Code, and 

25 chapter 53 of title 49, United States Code. 


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1 (2) FAILURE TO MEET APPROVAL DEAD2 LINES.—Regulations issued under paragraph (1) 

3 shall provide that if an application is submitted to 

4 the Secretary for approval of a project under title 

5 23, United States Code, or chapter 53 of title 49, 

6 United States Code, and the Secretary does not act 

7 on the application on or before the deadline estab8 lished for that action under such regulations, the ap9 plication shall be treated as having been approved. 

10 (3) DEADLINE FOR ISSUANCE OF FINAL REGU11 LATIONS.—Not later than 1 year after the date of 

12 enactment of this Act, the Secretary shall issue final 

13 regulations under paragraph (1). 

14 SEC. 8. ASSISTANCE TO STATE AND FEDERAL AGENCIES. 

15 Section 139(j)(2) of title 23, United States Code, is 

16 amended by adding at the end the following: ‘‘Such activi17 ties may include activities that extend beyond environ18 mental work to other aspects and modes of program and 

19 project delivery.’’. 

Æ 


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