243 
ate the context of a proposed roadway and select the 
appropriate design, consistent with context sensitive 
design principles.’’. 
(b) CONFORMING AMENDMENT.—Section 1404(b) of 
the FAST Act (23 U.S.C. 109 note) is repealed. 
SEC. 1108. INNOVATIVE PROJECT DELIVERY FEDERAL 
SHARE. 
(a) IN GENERAL.—Section 120(c)(3)(B) of title 23, 
United States Code, is amended— 
(1) by striking clauses (i) and (ii) and inserting 
the following: 
‘‘(i) prefabricated bridge elements and 
systems, innovative materials, and other 
technologies to reduce bridge construction 
time, extend service life, and reduce preser-
vation costs, as compared to conventionally 
designed and constructed bridges; 
‘‘(ii) innovative construction equip-
ment, materials, techniques, or practices, 
including the use of in-place recycling tech-
nology, digital 3-dimensional modeling tech-
nologies, and advanced digital construction 
management systems;’’; 
(2) by redesignating clause (vi) as clause (ix); 
(3) in clause (v) by striking ‘‘or’’ at the end; and 
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(4) by inserting after clause (v) the following: 
‘‘(vi) innovative pavement materials 
that demonstrate reductions in— 
‘‘(I) greenhouse gas emissions 
through sequestration or innovative 
manufacturing processes; or 
‘‘(II) 
local 
air 
pollution, 
stormwater runoff, or noise pollution; 
‘‘(vii) innovative culvert materials that 
are made with recycled content and dem-
onstrate reductions in greenhouse gas emis-
sions; 
‘‘(viii) contractual provisions that pro-
vide safety contingency funds to incorporate 
safety enhancements to work zones prior to 
or during roadway construction and main-
tenance activities; or’’. 
(b) TECHNICAL AMENDMENT.—Section 107(a)(2) of 
title 23, United States Code, is amended by striking ‘‘sub-
section (c) of’’. 
SEC. 1109. TRANSFERABILITY OF FEDERAL-AID HIGHWAY 
FUNDS. 
Section 126(b) of title 23, United States Code, is 
amended— 
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(1) in the heading by inserting ‘‘AND PRO-
GRAMS’’ after ‘‘SET-ASIDES’’; 
(2) 
in 
paragraph 
(1) 
by 
striking 
‘‘and 
133(d)(1)(A)’’ and inserting ‘‘, 130, 133(d)(1)(A), 
133(h), 148(m), 149, 151(f), and 171’’; and 
(3) by striking paragraph (2) and inserting the 
following: 
‘‘(2) ENVIRONMENTAL PROGRAMS.—With respect 
to an apportionment under either paragraph (4) or 
paragraph (9) of section 104(b), and notwithstanding 
paragraph (1), a State may only transfer not more 
than 50 percent from the amount of the apportion-
ment of either such paragraph to the apportionment 
under the other such paragraph in a fiscal year.’’. 
SEC. 1110. TOLLING. 
(a) TOLL ROADS, BRIDGES, TUNNELS, AND FER-
RIES.—Section 129 of title 23, United States Code, is 
amended— 
(1) in subsection (a)— 
(A) by striking paragraph (1) and inserting 
the following: 
‘‘(1) IN GENERAL.— 
‘‘(A) AUTHORIZATION.—Subject to the pro-
visions of this section, Federal participation 
shall be permitted on the same basis and in the 
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same manner as construction of toll-free high-
ways is permitted under this chapter in the— 
‘‘(i) initial construction of a toll high-
way, bridge, or tunnel or approach to the 
highway, bridge, or tunnel; 
‘‘(ii) initial construction of 1 or more 
lanes or other improvements that increase 
capacity of a highway, bridge, or tunnel 
(other than a highway on the Interstate 
System) and conversion of that highway, 
bridge, or tunnel to a tolled facility, if the 
number of toll-free lanes, excluding auxil-
iary lanes, after the construction is not less 
than the number of toll-free lanes, excluding 
auxiliary lanes, before the construction; 
‘‘(iii) initial construction of 1 or more 
lanes or other improvements that increase 
the capacity of a highway, bridge, or tunnel 
on the Interstate System and conversion of 
that highway, bridge, or tunnel to a tolled 
facility, if the number of toll-free non-HOV 
lanes, excluding auxiliary lanes, after such 
construction is not less than the number of 
toll-free non-HOV lanes, excluding auxil-
iary lanes, before such construction; 
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‘‘(iv) reconstruction, resurfacing, res-
toration, rehabilitation, or replacement of a 
toll highway, bridge, or tunnel or approach 
to the highway, bridge, or tunnel; 
‘‘(v) reconstruction or replacement of a 
toll-free bridge or tunnel and conversion of 
the bridge or tunnel to a toll facility; 
‘‘(vi) reconstruction of a toll-free Fed-
eral-aid highway (other than a highway on 
the Interstate System) and conversion of the 
highway to a toll facility; 
‘‘(vii) reconstruction, restoration, or 
rehabilitation of a highway on the Inter-
state System if the number of toll-free non- 
HOV lanes, excluding auxiliary lanes, after 
reconstruction, restoration, or rehabilitation 
is not less than the number of toll-free non- 
HOV lanes, excluding auxiliary lanes, be-
fore reconstruction, restoration, or rehabili-
tation; 
‘‘(viii) conversion of a high occupancy 
vehicle lane on a highway, bridge, or tunnel 
to a toll facility, subject to the requirements 
of section 166; and 
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‘‘(ix) preliminary studies to determine 
the feasibility of a toll facility for which 
Federal participation is authorized under 
this paragraph. 
‘‘(B) AGREEMENT TO TOLL.— 
‘‘(i) IN
GENERAL.—Before the Sec-
retary may authorize tolling under this sub-
section, the public authority with jurisdic-
tion over a highway, bridge, or tunnel shall 
enter into an agreement with the Secretary 
to ensure compliance with the requirements 
of this subsection. 
‘‘(ii) APPLICABILITY.— 
‘‘(I) IN
GENERAL.—The require-
ments of this subparagraph shall apply 
to— 
‘‘(aa) Federal participation 
under subparagraph (A); 
‘‘(bb) any prior Federal par-
ticipation in the facility proposed 
to be tolled; and 
‘‘(cc) conversion, with or 
without Federal participation, of 
a non-tolled lane on the National 
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Highway System to a toll facility 
under subparagraph (E). 
‘‘(II) HOV FACILITY.—Except as 
otherwise provided in this subsection or 
section 166, the provisions of this 
paragraph shall not apply to a high 
occupancy vehicle facility. 
‘‘(iii) MAJOR FEDERAL ACTION.—Ap-
proval by the Secretary of an agreement to 
toll under this paragraph shall be consid-
ered a major Federal action under the Na-
tional Environmental Policy Act of 1969 
(42 U.S.C. 4321 et seq.). 
‘‘(C) AGREEMENT
CONDITIONS.—Prior to 
entering into an agreement to toll under sub-
paragraph (B), the public authority shall certify 
to the Secretary that— 
‘‘(i) the public authority has estab-
lished procedures to ensure the toll meets the 
purposes and requirements of this sub-
section; 
‘‘(ii) the facility shall provide for ac-
cess at no cost to public transportation ve-
hicles and over-the-road buses serving the 
public; and 
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‘‘(iii) the facility shall provide for the 
regional interoperability of electronic toll 
collection, including through technologies or 
business practices. 
‘‘(D) CONSIDERATION OF IMPACTS.— 
‘‘(i) IN GENERAL.—Prior to entering 
into an agreement to toll under subpara-
graph (B), the Secretary shall ensure the 
public authority has adequately considered, 
including by providing an opportunity for 
public comment, the following factors with-
in the corridor: 
‘‘(I) Congestion impacts on both 
the toll facility and in the corridor or 
cordon (including adjacent toll-free fa-
cilities). 
‘‘(II) In the case of a non-attain-
ment or maintenance area, air quality 
impacts. 
‘‘(III) Planned investments to im-
prove public transportation or other 
non-tolled alternatives in the corridor. 
‘‘(IV) Environmental justice and 
equity impacts. 
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‘‘(V) Impacts on freight move-
ment. 
‘‘(VI) Economic impacts on busi-
nesses. 
‘‘(ii) CONSIDERATION
IN
ENVIRON-
MENTAL REVIEW.—Nothing in this subpara-
graph shall limit a public authority from 
meeting the requirements of this subpara-
graph through the environmental review 
process, as applicable. 
‘‘(E) CONGESTION PRICING.— 
‘‘(i) IN GENERAL.—The Secretary may 
authorize conversion of a non-tolled lane on 
the National Highway System to a toll fa-
cility to utilize pricing to manage the de-
mand to use the facility by varying the toll 
amount that is charged. 
‘‘(ii) REQUIREMENT.—Prior to enter-
ing into an agreement to convert a non- 
tolled lane on the National Highway Sys-
tem to a toll facility, the Secretary shall en-
sure (in addition to the requirements under 
subparagraphs (B), (C), and (D)) that such 
toll facility and the planned investments to 
improve public transportation or other non- 
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tolled alternatives in the corridor are rea-
sonably expected to improve the operation of 
the cordon or corridor, as described in 
clauses (iii) and (iv). 
‘‘(iii) PERFORMANCE MONITORING.—A 
public authority that enters into an agree-
ment to convert a non-tolled lane to a toll 
facility under this subparagraph shall— 
‘‘(I) establish, monitor, and sup-
port a performance monitoring, eval-
uation, and reporting program— 
‘‘(aa) for the toll facility that 
provides for continuous moni-
toring, assessment, and reporting 
on the impacts that the pricing 
structure may have on the oper-
ation of the facility; and 
‘‘(bb) for the corridor or cor-
don that provides for continuous 
monitoring, assessment, and re-
porting on the impacts of conges-
tion pricing on the operation of 
the corridor or cordon; 
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‘‘(II) submit to the Secretary an-
nual reports of the impacts described 
in subclause (I); and 
‘‘(III) if the facility or the cor-
ridor or cordon becomes degraded, as 
described in clause (iv), submit to the 
Secretary an annual update that de-
scribes the actions proposed to bring 
the toll facility into compliance and 
the progress made on such actions. 
‘‘(iv) DETERMINATION.— 
‘‘(I) DEGRADED OPERATION.—For 
purposes of clause (iii)(III), the oper-
ation of a toll facility shall be consid-
ered to be degraded if vehicles oper-
ating on the facility are failing to 
maintain a minimum average oper-
ating speed 90 percent of the time over 
a consecutive 180-day period during 
peak hour periods. 
‘‘(II) DEGRADED
CORRIDOR
OR 
CORDON.—For the purposes of clause 
(iii)(III), a corridor or cordon shall be 
considered to be degraded if congestion 
pricing or investments to improve pub-
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lic transportation or other non-tolled 
alternatives have not resulted in— 
‘‘(aa) an increase in person 
or freight throughput in the cor-
ridor or cordon; or 
‘‘(bb) a reduction in person 
hours of delay in the corridor or 
cordon, as determined by the Sec-
retary. 
‘‘(III) DEFINITION
OF
MINIMUM 
AVERAGE OPERATING SPEED.—In this 
subparagraph, the term ‘minimum av-
erage operating speed’ means— 
‘‘(aa) 35 miles per hour, in 
the case of a toll facility with a 
speed limit of 45 miles per hour 
or greater; and 
‘‘(bb) not more than 10 miles 
per hour below the speed limit, in 
the case of a toll facility with a 
speed limit of less than 50 miles 
per hour. 
‘‘(v) MAINTENANCE
OF
OPERATING 
PERFORMANCE.— 
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‘‘(I) IN GENERAL.—Not later than 
180 days after the date on which a fa-
cility or a corridor or cordon becomes 
degraded under clause (iv), the public 
authority with jurisdiction over the fa-
cility shall submit to the Secretary for 
approval a plan that details the ac-
tions the public authority will take to 
make 
significant 
progress 
toward 
bringing the facility or corridor or cor-
don into compliance with this subpara-
graph. 
‘‘(II) NOTICE
OF
APPROVAL
OR 
DISAPPROVAL.—Not later than 60 days 
after the date of receipt of a plan 
under subclause (I), the Secretary shall 
provide to the public authority a writ-
ten notice indicating whether the Sec-
retary has approved or disapproved the 
plan based on a determination of 
whether the implementation of the plan 
will make significant progress toward 
bringing the facility or corridor or cor-
don into compliance with this subpara-
graph. 
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257 
graph is located on the National Highway 
System and in a metropolitan planning 
area established in accordance with section 
134, the public authority shall consult with 
the metropolitan planning organization for 
the area. 
‘‘(vii) INCLUSION.—For the purposes of 
this paragraph, the corridor or cordon shall 
include toll-free facilities that are adjacent 
to the toll facility.’’; 
(B) in paragraph (3)— 
(i) in subparagraph (A)— 
(I) in clause (iv) by striking 
‘‘and’’ at the end; and 
(II) by striking clause (v) and in-
serting the following: 
‘‘(v) any project eligible under this 
title or chapter 53 of title 49 that improves 
the operation of the corridor or cordon by 
increasing person or freight throughput and 
reducing person hours of delay; 
‘‘(vi) toll discounts or rebates for users 
of the toll facility that have no reasonable 
alternative transportation method to the toll 
facility; and 
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‘‘(vii) if the public authority certifies 
annually that the tolled facility is being 
adequately maintained and the cordon or 
corridor is not degraded under paragraph 
(1)(E), any revenues remaining after fund-
ing the activities described in clauses (i) 
through (vi) shall be considered surplus rev-
enue and may be used for any other purpose 
for which Federal funds may be obligated 
by a State under this title or chapter 53 of 
title 49.’’; and 
(ii) by striking subparagraph (B) and 
inserting the following: 
‘‘(B) TRANSPARENCY.— 
‘‘(i) ANNUAL AUDIT.— 
‘‘(I) IN GENERAL.—A public au-
thority with jurisdiction over a toll fa-
cility shall conduct or have an inde-
pendent auditor conduct an annual 
audit of toll facility records to verify 
adequate maintenance and compliance 
with subparagraph (A), and report the 
results of the audits to the Secretary. 
‘‘(II) RECORDS.—On reasonable 
notice, the public authority shall make 
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all records of the public authority per-
taining to the toll facility available for 
audit by the Secretary. 
‘‘(ii) USE OF REVENUES.—A State or 
public authority that obligates amounts 
under clauses (v), (vi), or (vii) of subpara-
graph (A) shall annually report to the Sec-
retary a list of activities funded with such 
amounts and the amount of funding pro-
vided for each such activity.’’; 
(C) in paragraph (8) by striking ‘‘as of the 
date of enactment of the MAP–21, before com-
mencing any activity authorized’’ and inserting 
‘‘, before commencing any activity authorized’’; 
(D) in paragraph (9)— 
(i) by striking ‘‘bus’’ and inserting 
‘‘vehicle’’; and 
(ii) by striking ‘‘buses’’ and inserting 
‘‘vehicles’’; and 
(E) by striking paragraph (10) and insert-
ing the following: 
‘‘(10) INTEROPERABILITY OF ELECTRONIC TOLL 
COLLECTION.— 
‘‘(A) IN
GENERAL.—All toll facilities on 
Federal-aid highways shall provide for the re-
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260 
gional interoperability of electronic toll collec-
tion, including through technologies or business 
practices. 
‘‘(B) PROHIBITION
ON
RESTRICTION.—No 
State, or any political subdivision thereof, shall 
restrict the information that is shared across 
public and private toll facility operators or their 
agents or contractors for purposes of facilitating, 
operating, or maintaining electronic toll collec-
tion programs. 
‘‘(11) NONCOMPLIANCE.—If the Secretary con-
cludes that a public authority has not complied with 
the requirements of this subsection, the Secretary may 
require the public authority to discontinue collecting 
tolls until the public authority and the Secretary 
enter into an agreement for the public authority to 
achieve compliance with such requirements. 
‘‘(12) DEFINITIONS.—In this subsection, the fol-
lowing definitions apply: 
‘‘(A) FEDERAL PARTICIPATION.—The term 
‘Federal participation’ means the use of funds 
made available under this title. 
‘‘(B) HIGH
OCCUPANCY
VEHICLE; HOV.— 
The term ‘high occupancy vehicle’ or ‘HOV’ 
means a vehicle with not fewer than 2 occupants. 
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‘‘(C) INITIAL CONSTRUCTION.— 
‘‘(i) IN GENERAL.—The term ‘initial 
construction’ means the construction of a 
highway, bridge, tunnel, or other facility at 
any time before it is open to traffic. 
‘‘(ii) EXCLUSIONS.—The term ‘initial 
construction’ does not include any improve-
ment to a highway, bridge, tunnel, or other 
facility after it is open to traffic. 
‘‘(D) 
OVER-THE-ROAD
BUS.—The 
term 
‘over-the-road bus’ has the meaning given the 
term in section 301 of the Americans with Dis-
abilities Act of 1990 (42 U.S.C. 12181). 
‘‘(E) PUBLIC AUTHORITY.—The term ‘pub-
lic authority’ means a State, interstate compact 
of States, or public entity designated by a State. 
‘‘(F) PUBLIC TRANSPORTATION VEHICLE.— 
The term ‘public transportation vehicle’ has the 
meaning given that term in section 166. 
‘‘(G) TOLL FACILITY.—The term ‘toll facil-
ity’ means a toll highway, bridge, or tunnel or 
approach to the highway, bridge, or tunnel con-
structed or authorized to be tolled under this sub-
section.’’. 
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262 
(b) REPEAL OF INTERSTATE SYSTEM RECONSTRUC-
TION
AND REHABILITATION PILOT PROGRAM.—Section 
1216 of the Transportation Equity Act for the 21st Century 
(23 U.S.C. 129 note), and the item related to such section 
in the table of contents in section 1(b) of such Act, are re-
pealed. 
(c) 
VALUE
PRICING
PILOT
PROGRAM.—Section 
1012(b) of the Intermodal Surface Transportation Effi-
ciency Act of 1991 (23 U.S.C. 149 note) is amended by add-
ing at the end the following: 
‘‘(9) SUNSET.—The Secretary may not consider 
an expression of interest submitted under this section 
after the date of enactment of this paragraph.’’. 
(d) SAVINGS CLAUSE.— 
(1) APPLICATION OF LIMITATIONS.—Any toll fa-
cility described in paragraph (2) shall be subject to 
the requirements of section 129(a)(3) of title 23, 
United States Code, as in effect on the day before the 
date of enactment of this Act. 
(2) TOLL FACILITIES.—A toll facility described 
in this paragraph is a facility that, on the day prior 
to the date of enactment of this Act, was— 
(A) operating; 
(B) in the planning and design phase; or 
(C) in the construction phase. 
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(e) REPORT.—Not later than 180 days after the date 
of enactment of this Act, the Secretary of Transportation 
shall submit to Congress a report on the implementation 
of the interoperability of toll collection as required under 
section 1512(b) of MAP–21, including an assessment of the 
progress in, and barriers on, such implementation. 
SEC. 1111. HOV FACILITIES. 
Section 166 of title 23, United States Code, is amend-
ed— 
(1) in subsection (b)— 
(A) in paragraph (4)(C)(iii) by striking 
‘‘transportation buses’’ and inserting ‘‘transpor-
tation vehicles’’; 
(B) in paragraph (5)(B) by striking ‘‘2019’’ 
and inserting ‘‘2025’’; and 
(C) by adding at the end the following: 
‘‘(6) EMERGENCY
VEHICLES.—The public au-
thority may allow the following vehicles to use the 
HOV facility if the authority establishes requirements 
for clearly identifying the vehicles: 
‘‘(A) An emergency vehicle that is respond-
ing to an existing emergency. 
‘‘(B) A blood transport vehicle that is trans-
porting blood between collection points and hos-
pitals or storage centers.’’. 
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(2) in subsection (d)(2)(A)(i) by striking ‘‘45 
miles per hour, in the case of a HOV facility with a 
speed limit of 50 miles per hour or greater’’ and in-
serting ‘‘35 miles per hour, in the case of a HOV fa-
cility with a speed limit of 45 miles per hour or 
greater’’; 
(3) in subsection (d)(2)(B) by striking ‘‘morning 
or evening weekday peak hour periods (or both)’’ and 
inserting ‘‘peak hour periods’’; 
(4) in subsection (e)— 
(A) by striking ‘‘Not later than 180 days 
after the date of enactment of this section, the 
Administrator’’ and inserting ‘‘The Adminis-
trator’’; 
(B) in paragraph (1) by striking ‘‘and’’ at 
the end; 
(C) in paragraph (2) by striking the period 
at the end and inserting ‘‘; and’’; and 
(D) by adding at the end the following: 
‘‘(3) not later than 180 days after the date of en-
actment of the INVEST in America Act, update the 
requirements established under paragraph (1).’’; and 
(5) in subsection (f)— 
(A) in paragraph (1)— 
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(i) by striking subparagraphs (C), (D), 
and (F); and 
(ii) by redesignating subparagraphs 
(E), (G), (H), and (I) as subparagraphs 
(C), (D), (E), and (F), respectively; and 
(B) in paragraph (6)(B)(i) by striking 
‘‘public entity’’ and inserting ‘‘public transpor-
tation service that is a recipient or subrecipient 
of funds under chapter 53 of title 49’’. 
SEC. 1112. BUY AMERICA. 
(a) IN GENERAL.—Section 313 of title 23, United 
States Code, is amended— 
(1) in subsection (a)— 
(A) by striking ‘‘Notwithstanding’’ and in-
serting ‘‘IN GENERAL.—Notwithstanding’’; 
(B) by striking ‘‘Secretary of Transpor-
tation’’ and inserting ‘‘Secretary’’; 
(C) by striking ‘‘the Surface Transportation 
Assistance Act of 1982 (96 Stat. 2097) or’’; and 
(D) by striking ‘‘and manufactured prod-
ucts’’ and inserting ‘‘manufactured products, 
and construction materials’’; 
(2) in subsection (b) by inserting ‘‘DETERMINA-
TION.—’’ before ‘‘The provisions’’; 
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(3) in subsection (c) by striking ‘‘For purposes’’ 
and inserting ‘‘CALCULATION.—For purposes’’; 
(4) in subsection (d)— 
(A) by striking ‘‘The Secretary of Transpor-
tation’’ and inserting ‘‘REQUIREMENTS.—The 
Secretary’’; and 
(B) by striking ‘‘the Surface Transportation 
Assistance Act of 1982 (96 Stat. 2097) or’’; 
(5) in subsection (g) by inserting ‘‘or within the 
scope of the applicable finding, determination, or en-
vironmental review decision made pursuant to au-
thority granted by the Secretary under section 330, if 
applicable,’’ before ‘‘regardless of the’’; and 
(6) by adding at the end the following: 
‘‘(h) WAIVER PROCEDURE.— 
‘‘(1) IN
GENERAL.—Not later than 120 days 
after the submission of a request for a waiver, the 
Secretary shall make a determination under para-
graph (1) or (2) of subsection (b) as to whether sub-
section (a) shall apply. 
‘‘(2) PUBLIC NOTIFICATION AND COMMENT.— 
‘‘(A) IN GENERAL.—Not later than 30 days 
before making a determination regarding a 
waiver described in paragraph (1), the Secretary 
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shall provide notification and an opportunity for 
public comment on the request for such waiver. 
‘‘(B) NOTIFICATION
REQUIREMENTS.—The 
notification required under subparagraph (A) 
shall— 
‘‘(i) describe whether the application is 
being made for a determination described in 
subsection (b)(1); and 
‘‘(ii) be provided to the public by elec-
tronic means, including on the public 
website of the Department of Transpor-
tation. 
‘‘(3) DETERMINATION.—Before a determination 
described in paragraph (1) takes effect, the Secretary 
shall publish a detailed justification for such deter-
mination that addresses all public comments received 
under paragraph (2)— 
‘‘(A) on the public website of the Depart-
ment of Transportation; and 
‘‘(B) if the Secretary issues a waiver with 
respect to such determination, in the Federal 
Register. 
‘‘(i) REVIEW OF NATIONWIDE WAIVERS.— 
‘‘(1) IN GENERAL.—Not later than 1 year after 
the date of enactment of this subsection, and at least 
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every 5 years thereafter, the Secretary shall review 
any standing nationwide waiver issued by the Sec-
retary under this section to ensure such waiver re-
mains justified. 
‘‘(2) PUBLIC
NOTIFICATION
AND
OPPORTUNITY 
FOR COMMENT.— 
‘‘(A) IN GENERAL.—Not later than 30 days 
before the completion of a review under para-
graph (1), the Secretary shall provide notifica-
tion and an opportunity for public comment on 
such review. 
‘‘(B) MEANS
OF
NOTIFICATION.—Notifica-
tion provided under this subparagraph shall be 
provided by electronic means, including on the 
public website of the Department of Transpor-
tation. 
‘‘(3) DETAILED JUSTIFICATION IN FEDERAL REG-
ISTER.—After the completion of a review under para-
graph (1), the Secretary shall publish in the Federal 
Register a detailed justification for the determination 
made under paragraph (1) that addresses all public 
comments received under paragraph (2). 
‘‘(4) CONSIDERATION.—In conducting the review 
under paragraph (1), the Secretary shall consider the 
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