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U.S. CODE
TITLE 23
HIGHWAYS

Version 2010-02-01


  • FEDERAL-AID HIGHWAYS
  • OTHER HIGHWAYS
  • GENERAL PROVISIONS
  • HIGHWAY SAFETY
  • RESEARCH, TECHNOLOGY, AND EDUCATION
  • INFRASTRUCTURE FINANCE
  • Version 2010-02-01

CHAPTER 1

FEDERAL-AID HIGHWAYS

Definitions and declaration of policy

(a) Definitions.— In this title, the following definitions apply:
  • (1) Apportionment.— The term "apportionment" includes unexpended apportionments made under prior authorization laws.

  • (2) Carpool project.— The term "carpool project" means any project to encourage the use of carpools and vanpools, including provision of carpooling opportunities to the elderly and individuals with disabilities, systems for locating potential riders and informing them of carpool opportunities, acquiring vehicles for carpool use, designating existing highway lanes as preferential carpool highway lanes, providing related traffic control devices, and designating existing facilities for use for preferential parking for carpools.

  • (3) Construction.— The term "construction" means the supervising, inspecting, actual building, and incurrence of all costs incidental to the construction or reconstruction of a highway, including bond costs and other costs relating to the issuance in accordance with section 122 of bonds or other debt financing instruments and costs incurred by the State in performing Federal-aid project related audits that directly benefit the Federal-aid highway program. Such term includes—
    • (A) locating, surveying, and mapping (including the establishment of temporary and permanent geodetic markers in accordance with specifications of the National Oceanic and Atmospheric Administration of the Department of Commerce);

    • (B) resurfacing, restoration, and rehabilitation;

    • (C) acquisition of rights-of-way;

    • (D) relocation assistance, acquisition of replacement housing sites, and acquisition and rehabilitation, relocation, and construction of replacement housing;

    • (E) elimination of hazards of railway grade crossings;

    • (F) elimination of roadside obstacles;

    • (G) improvements that directly facilitate and control traffic flow, such as grade separation of intersections, widening of lanes, channelization of traffic, traffic control systems, and passenger loading and unloading areas; and

    • (H) capital improvements that directly facilitate an effective vehicle weight enforcement program, such as scales (fixed and portable), scale pits, scale installation, and scale houses.

  • (4) County.— The term "county" includes corresponding units of government under any other name in States that do not have county organizations and, in those States in which the county government does not have jurisdiction over highways, any local government unit vested with jurisdiction over local highways.

  • (5) Federal-aid highway.— The term "Federal-aid highway" means a highway eligible for assistance under this chapter other than a highway classified as a local road or rural minor collector.

  • (6) Federal-aid system.— The term "Federal-aid system" means any of the Federal-aid highway systems described in section 103.

  • (7) Federal lands highway.— The term "Federal lands highway" means a forest highway, public lands highway, park road, parkway, refuge road, and Indian reservation road that is a public road.

  • (8) Forest development roads and trails.— The term "forest development roads and trails" means forest roads and trails under the jurisdiction of the Forest Service.

  • (9) Forest highway.— The term "forest highway" means a forest road under the jurisdiction of, and maintained by, a public authority and open to public travel.

  • (10) Forest road or trail.— The term "forest road or trail" means a road or trail wholly or partly within, or adjacent to, and serving the National Forest System that is necessary for the protection, administration, and utilization of the National Forest System and the use and development of its resources.

  • (11) Highway.— The term "highway" includes—
    • (A) a road, street, and parkway;

    • (B) a right-of-way, bridge, railroad-highway crossing, tunnel, drainage structure, sign, guardrail, and protective structure, in connection with a highway; and

    • (C) a portion of any interstate or international bridge or tunnel and the approaches thereto, the cost of which is assumed by a State transportation department, including such facilities as may be required by the United States Customs and Immigration Services in connection with the operation of an international bridge or tunnel.

  • (12) Indian reservation road.— The term "Indian reservation road" means a public road that is located within or provides access to an Indian reservation or Indian trust land or restricted Indian land that is not subject to fee title alienation without the approval of the Federal Government, or Indian and Alaska Native villages, groups, or communities in which Indians and Alaskan Natives reside, whom the Secretary of the Interior has determined are eligible for services generally available to Indians under Federal laws specifically applicable to Indians.

  • (13) Interstate System.— The term "Interstate System" means the Dwight D. Eisenhower National System of Interstate and Defense Highways described in section 103 (c).

  • (14) Maintenance.— The term "maintenance" means the preservation of the entire highway, including surface, shoulders, roadsides, structures, and such traffic-control devices as are necessary for safe and efficient utilization of the highway.

  • (15) Maintenance area.— The term "maintenance area" means an area that was designated as a nonattainment area, but was later redesignated by the Administrator of the Environmental Protection Agency as an attainment area, under section 107(d) of the Clean Air Act (42 U.S.C. 7407 (d)).

  • (16) National Highway System.— The term "National Highway System" means the Federal-aid highway system described in section 103 (b).

  • (17) Operating costs for traffic monitoring, management, and control.— The term "operating costs for traffic monitoring, management, and control" includes labor costs, administrative costs, costs of utilities and rent, and other costs associated with the continuous operation of traffic control, such as integrated traffic control systems, incident management programs, and traffic control centers.

  • (18) Operational improvement.— The term "operational improvement"—
    • (A) means
      • (i) a capital improvement for installation of traffic surveillance and control equipment, computerized signal systems, motorist information systems, integrated traffic control systems, incident management programs, and transportation demand management facilities, strategies, and programs, and

      • (ii) such other capital improvements to public roads as the Secretary may designate, by regulation; and

    • (B) does not include resurfacing, restoring, or rehabilitating improvements, construction of additional lanes, interchanges, and grade separations, and construction of a new facility on a new location.

  • (19) Park road.— The term "park road" means a public road, including a bridge built primarily for pedestrian use, but with capacity for use by emergency vehicles, that is located within, or provides access to, an area in the National Park System with title and maintenance responsibilities vested in the United States.

  • (20) Parkway.— The term "parkway", as used in chapter 2 of this title, means a parkway authorized by Act of Congress on lands to which title is vested in the United States.

  • (21) Project.— The term "project" means an undertaking to construct a particular portion of a highway, or if the context so implies, the particular portion of a highway so constructed or any other undertaking eligible for assistance under this title.

  • (22) Project agreement.— The term "project agreement" means the formal instrument to be executed by the State transportation department and the Secretary as required by section 106.

  • (23) Public authority.— The term "public authority" means a Federal, State, county, town, or township, Indian tribe, municipal or other local government or instrumentality with authority to finance, build, operate, or maintain toll or toll-free facilities.

  • (24) Public lands development roads and trails.— The term "public lands development roads and trails" means those roads and trails that the Secretary of the Interior determines are of primary importance for the development, protection, administration, and utilization of public lands and resources under the control of the Secretary of the Interior.

  • (25) Public lands highway.— The term "public lands highway" means a forest road under the jurisdiction of and maintained by a public authority and open to public travel or any highway through unappropriated or unreserved public lands, nontaxable Indian lands, or other Federal reservations under the jurisdiction of and maintained by a public authority and open to public travel.

  • (26) Public lands highways.— The term "public lands highways" means those main highways through unappropriated or unreserved public lands, nontaxable Indian lands, or other Federal reservations, which are on the Federal-aid systems.

  • (27) Public road.— The term "public road" means any road or street under the jurisdiction of and maintained by a public authority and open to public travel.

  • (28) Refuge road.— The term "refuge road" means a public road that provides access to or within a unit of the National Wildlife Refuge System and for which title and maintenance responsibility is vested in the United States Government.

  • (29) Rural areas.— The term "rural areas" means all areas of a State not included in urban areas.

  • (30) Safety improvement project.— The term "safety improvement project" means a project that corrects or improves high hazard locations, eliminates roadside obstacles, improves highway signing and pavement marking, installs priority control systems for emergency vehicles at signalized intersections, installs or replaces emergency motorist aid call boxes, or installs traffic control or warning devices at locations with high accident potential.

  • (31) Secretary.— The term "Secretary" means Secretary of Transportation.

  • (32) State.— The term "State" means any of the 50 States, the District of Columbia, or Puerto Rico.

  • (33) State funds.— The term "State funds" includes funds raised under the authority of the State or any political or other subdivision thereof, and made available for expenditure under the direct control of the State transportation department.

  • (34) State transportation department.— The term "State transportation department" means that department, commission, board, or official of any State charged by its laws with the responsibility for highway construction.

  • (35) Transportation enhancement activity.— The term "transportation enhancement activity" means, with respect to any project or the area to be served by the project, any of the following activities as the activities relate to surface transportation:
    • (A) Provision of facilities for pedestrians and bicycles.

    • (B) Provision of safety and educational activities for pedestrians and bicyclists.

    • (C) Acquisition of scenic easements and scenic or historic sites (including historic battlefields).

    • (D) Scenic or historic highway programs (including the provision of tourist and welcome center facilities).

    • (E) Landscaping and other scenic beautification.

    • (F) Historic preservation.

    • (G) Rehabilitation and operation of historic transportation buildings, structures, or facilities (including historic railroad facilities and canals).

    • (H) Preservation of abandoned railway corridors (including the conversion and use of the corridors for pedestrian or bicycle trails).

    • (I) Inventory, control, and removal of outdoor advertising.

    • (J) Archaeological planning and research.

    • (K) Environmental mitigation—
      • (i) to address water pollution due to highway runoff; or

      • (ii) reduce vehicle-caused wildlife mortality while maintaining habitat connectivity.

    • (L) Establishment of transportation museums.

  • (36) Urban area.— The term "urban area" means an urbanized area or, in the case of an urbanized area encompassing more than one State, that part of the urbanized area in each such State, or urban place as designated by the Bureau of the Census having a population of 5,000 or more and not within any urbanized area, within boundaries to be fixed by responsible State and local officials in cooperation with each other, subject to approval by the Secretary. Such boundaries shall encompass, at a minimum, the entire urban place designated by the Bureau of the Census, except in the case of cities in the State of Maine and in the State of New Hampshire.

  • (37) Urbanized area.— The term "urbanized area" means an area with a population of 50,000 or more designated by the Bureau of the Census, within boundaries to be fixed by responsible State and local officials in cooperation with each other, subject to approval by the Secretary. Such boundaries shall encompass, at a minimum, the entire urbanized area within a State as designated by the Bureau of the Census.

  • (38) Advanced truck stop electrification system.— The term "advanced truck stop electrification system" means a system that delivers heat, air conditioning, electricity, or communications to a heavy duty vehicle.

  • (39) Transportation systems management and operations.—
    • (A) In general.— The term "transportation systems management and operations" means an integrated program to optimize the performance of existing infrastructure through the implementation of multimodal and intermodal, cross-jurisdictional systems, services, and projects designed to preserve capacity and improve security, safety, and reliability of the transportation system.

    • (B) Inclusions.— The term "transportation systems management and operations" includes—
      • (i) regional operations collaboration and coordination activities between transportation and public safety agencies; and

      • (ii) improvements to the transportation system, such as traffic detection and surveillance, arterial management, freeway management, demand management, work zone management, emergency management, electronic toll collection, automated enforcement, traffic incident management, roadway weather management, traveler information services, commercial vehicle operations, traffic control, freight management, and coordination of highway, rail, transit, bicycle, and pedestrian operations.

(b) Declaration of Policy.—
  • (1) Acceleration of construction of federal-aid highway systems.— Congress declares that it is in the national interest to accelerate the construction of Federal-aid highway systems, including the Dwight D. Eisenhower National System of Interstate and Defense, because many of the highways (or portions of the highways) are inadequate to meet the needs of local and interstate commerce for the national and civil defense.

  • (2) Completion of interstate system.— Congress declares that the prompt and early completion of the Dwight D. Eisenhower National System of Interstate and Defense Highways (referred to in this section as the "Interstate System"), so named because of its primary importance to the national defense, is essential to the national interest. It is the intent of Congress that the Interstate System be completed as nearly as practicable over the period of availability of the forty years' appropriations authorized for the purpose of expediting its construction, reconstruction, or improvement, inclusive of necessary tunnels and bridges, through the fiscal year ending September 30, 1996, under section 108(b) of the Federal-Aid Highway Act of 1956 (70 Stat. 374), and that the entire system in all States be brought to simultaneous completion. Insofar as possible in consonance with this objective, existing highways located on an interstate route shall be used to the extent that such use is practicable, suitable, and feasible, it being the intent that local needs, to the extent practicable, suitable, and feasible, shall be given equal consideration with the needs of interstate commerce.

  • (3) Transportation needs of 21st century.— Congress declares that—
    • (A) it is in the national interest to preserve and enhance the surface transportation system to meet the needs of the United States for the 21st Century;

    • (B) the current urban and long distance personal travel and freight movement demands have surpassed the original forecasts and travel demand patterns are expected to continue to change;

    • (C) continued planning for and investment in surface transportation is critical to ensure the surface transportation system adequately meets the changing travel demands of the future;

    • (D) among the foremost needs that the surface transportation system must meet to provide for a strong and vigorous national economy are safe, efficient, and reliable—
      • (i) national and interregional personal mobility (including personal mobility in rural and urban areas) and reduced congestion;

      • (ii) flow of interstate and international commerce and freight transportation; and

      • (iii) travel movements essential for national security;

    • (E) special emphasis should be devoted to providing safe and efficient access for the type and size of commercial and military vehicles that access designated National Highway System intermodal freight terminals;

    • (F) the connection between land use and infrastructure is significant;

    • (G) transportation should play a significant role in promoting economic growth, improving the environment, and sustaining the quality of life; and

    • (H) the Secretary should take appropriate actions to preserve and enhance the Interstate System to meet the needs of the 21st Century.

(c) It is the sense of Congress that under existing law no part of any sums authorized to be appropriated for expenditure upon any Federal-aid system which has been apportioned pursuant to the provisions of this title shall be impounded or withheld from obligation, for purposes and projects as provided in this title, by any officer or employee in the executive branch of the Federal Government, except such specific sums as may be determined by the Secretary of the Treasury, after consultation with the Secretary of Transportation, are necessary to be withheld from obligation for specific periods of time to assure that sufficient amounts will be available in the Highway Trust Fund to defray the expenditures which will be required to be made from such fund.

(d) No funds authorized to be appropriated from the Highway Trust Fund shall be expended by or on behalf of any Federal department, agency, or instrumentality other than the Federal Highway Administration unless funds for such expenditure are identified and included as a line item in an appropriation Act and are to meet obligations of the United States heretofore or hereafter incurred under this title attributable to the construction of Federal-aid highways or highway planning, research, or development, or as otherwise specifically authorized to be appropriated from the Highway Trust Fund by Federal-aid highway legislation.

(e) It is the national policy that to the maximum extent possible the procedures to be utilized by the Secretary and all other affected heads of Federal departments, agencies, and instrumentalities for carrying out this title and any other provision of law relating to the Federal highway programs shall encourage the substantial minimization of paperwork and interagency decision procedures and the best use of available manpower and funds so as to prevent needless duplication and unnecessary delays at all levels of government.

Program efficiencies

(a) Access of Motorcycles.— No State or political subdivision of a State may enact or enforce a law that applies only to motorcycles and the principal purpose of which is to restrict the access of motorcycles to any highway or portion of a highway for which Federal-aid highway funds have been utilized for planning, design, construction, or maintenance. Nothing in this subsection shall affect the authority of a State or political subdivision of a State to regulate motorcycles for safety.

(b) Engineering Cost Reimbursement.— If on-site construction of, or acquisition of right-of-way for, a highway project is not commenced within 10 years (or such longer period as the State requests and the Secretary determines to be reasonable) after the date on which Federal funds are first made available, out of the Highway Trust Fund (other than Mass Transit Account), for preliminary engineering of such project, the State shall pay an amount equal to the amount of Federal funds made available for such engineering. The Secretary shall deposit in such Fund all amounts paid to the Secretary under this section.



Federal-aid systems

(a) In General.— For the purposes of this title, the Federal-aid systems are the Interstate System and the National Highway System.

(b) National Highway System.—
  • (1) Description.— The National Highway System consists of the highway routes and connections to transportation facilities depicted on the map submitted by the Secretary to Congress with the report entitled "Pulling Together: The National Highway System and its Connections to Major Intermodal Terminals" and dated May 24, 1996. The system shall—
    • (A) serve major population centers, international border crossings, ports, airports, public transportation facilities, and other intermodal transportation facilities and other major travel destinations;

    • (B) meet national defense requirements; and

    • (C) serve interstate and interregional travel.

  • (2) Components.— The National Highway System described in paragraph (1) consists of the following:
    • (A) The Interstate System described in subsection (c).

    • (B) Other urban and rural principal arterial routes.

    • (C) Other connector highways (including toll facilities) that provide motor vehicle access between arterial routes on the National Highway System and a major intermodal transportation facility.

    • (D) A strategic highway network consisting of a network of highways that are important to the United States strategic defense policy and that provide defense access, continuity, and emergency capabilities for the movement of personnel, materials, and equipment in both peacetime and wartime. The highways may be highways on or off the Interstate System and shall be designated by the Secretary in consultation with appropriate Federal agencies and the States.

    • (E) Major strategic highway network connectors consisting of highways that provide motor vehicle access between major military installations and highways that are part of the strategic highway network. The highways shall be designated by the Secretary in consultation with appropriate Federal agencies and the States.

  • (3) Maximum mileage.— The mileage of highways on the National Highway System shall not exceed 178,250 miles.

  • (4) Modifications to nhs.—
    • (A) In general.— The Secretary may make any modification, including any modification consisting of a connector to a major intermodal terminal, to the National Highway System that is proposed by a State or that is proposed by a State and revised by the Secretary if the Secretary determines that the modification—
      • (i) meets the criteria established for the National Highway System under this title; and

      • (ii) enhances the national transportation characteristics of the National Highway System.

    • (B) Cooperation.—
      • (i) In general.— In proposing a modification under this paragraph, a State shall cooperate with local and regional officials.

      • (ii) Urbanized areas.— In an urbanized area, the local officials shall act through the metropolitan planning organization designated for the area under section 134.

  • (5) Congressional high priority corridors.— Upon the completion of feasibility studies, the Secretary shall add to the National Highway System any congressional high priority corridor or any segment of such a corridor established by section 1105 of the Intermodal Surface Transportation Efficiency Act of 1991 (105 Stat. 2031 et seq.) that was not identified on the National Highway System described in paragraph (1).

  • (6) State eligible projects for nhs.— Subject to approval by the Secretary, funds apportioned to a State under section 104 (b)(1) for the National Highway System may be obligated for any of the following:
    • (A) Construction, reconstruction, resurfacing, restoration, and rehabilitation of segments of the National Highway System.

    • (B) Operational improvements for segments of the National Highway System.

    • (C) Construction of, and operational improvements for, a Federal-aid highway not on the National Highway System, and construction of a transit project eligible for assistance under chapter 53 of title 49, if—
      • (i) the highway or transit project is in the same corridor as, and in proximity to, a fully access-controlled highway designated as a part of the National Highway System;

      • (ii) the construction or improvements will improve the level of service on the fully access-controlled highway described in clause (i) and improve regional traffic flow; and

      • (iii) the construction or improvements are more cost-effective than an improvement to the fully access-controlled highway described in clause (i).

    • (D) Highway safety improvements for segments of the National Highway System.

    • (E) Transportation planning in accordance with sections 134 and 135.

    • (F) Highway research and planning in accordance with chapter 5.

    • (G) Highway-related technology transfer activities.

    • (H) Capital and operating costs for traffic monitoring, management, and control facilities and programs.

    • (I) Fringe and corridor parking facilities.

    • (J) Carpool and vanpool projects.

    • (K) Bicycle transportation and pedestrian walkways in accordance with section 217.

    • (L) Development, establishment, and implementation of management systems under section 303.

    • (M) In accordance with all applicable Federal law (including regulations), participation in natural habitat and wetland mitigation efforts related to projects funded under this title, which may include participation in natural habitat and wetland mitigation banks, contributions to statewide and regional efforts to conserve, restore, enhance, and create natural habitats and wetland, and development of statewide and regional natural habitat and wetland conservation and mitigation plans, including any such banks, efforts, and plans authorized under the Water Resources Development Act of 1990 (Public Law 101-640) (including crediting provisions). Contributions to the mitigation efforts described in the preceding sentence may take place concurrent with or in advance of project construction; except that contributions in advance of project construction may occur only if the efforts are consistent with all applicable requirements of Federal law (including regulations) and State transportation planning processes. With respect to participation in a natural habitat or wetland mitigation effort related to a project funded under this title that has an impact that occurs within the service area of a mitigation bank, preference shall be given, to the maximum extent practicable, to the use of the mitigation bank if the bank contains sufficient available credits to offset the impact and the bank is approved in accordance with the Federal Guidance for the Establishment, Use and Operation of Mitigation Banks (60 Fed. Reg. 58605 (November 28, 1995)) or other applicable Federal law (including regulations).

    • (N) Publicly-owned intracity or intercity bus terminals.

    • (O) Infrastructure-based intelligent transportation systems capital improvements.

    • [(P) Repealed. Pub. L. 109-59, title I, § 1118(b)(1)(B), Aug. 10, 2005, 119 Stat. 1181.]

    • (Q) Environmental restoration and pollution abatement in accordance with section 328.

    • (R) Control of noxious weeds and aquatic noxious weeds and establishment of native species in accordance with section 329.

  • (7) Territory eligible projects.— Subject to approval by the Secretary, funds set aside for this program under section 104 (b)(1) for the National Highway System may be obligated for projects eligible for assistance under the territorial highway program under section 215.

(c) Interstate System.—
  • (1) Description.—
    • (A) In general.— The Dwight D. Eisenhower National System of Interstate and Defense Highways within the United States (including the District of Columbia and Puerto Rico) consists of highways designed, located, and selected in accordance with this paragraph.

    • (B) Design.—
      • (i) In general.— Except as provided in clause (ii), highways on the Interstate System shall be designed in accordance with the standards of section 109 (b).

      • (ii) Exception.— Highways on the Interstate System in Alaska and Puerto Rico shall be designed in accordance with such geometric and construction standards as are adequate for current and probable future traffic demands and the needs of the locality of the highway.

    • (C) Location.— Highways on the Interstate System shall be located so as—
      • (i) to connect by routes, as direct as practicable, the principal metropolitan areas, cities, and industrial centers;

      • (ii) to serve the national defense; and

      • (iii) to the maximum extent practicable, to connect at suitable border points with routes of continental importance in Canada and Mexico.

    • (D) Selection of routes.— To the maximum extent practicable, each route of the Interstate System shall be selected by joint action of the State transportation departments of the State in which the route is located and the adjoining States, in cooperation with local and regional officials, and subject to the approval of the Secretary.

  • (2) Maximum mileage.— The mileage of highways on the Interstate System shall not exceed 43,000 miles, exclusive of designations under paragraph (4).

  • (3) Modifications.— The Secretary may approve or require modifications to the Interstate System in a manner consistent with the policies and procedures established under this subsection.

  • (4) Interstate system designations.—
    • (A) Additions.— If the Secretary determines that a highway on the National Highway System meets all standards of a highway on the Interstate System and that the highway is a logical addition or connection to the Interstate System, the Secretary may, upon the affirmative recommendation of the State or States in which the highway is located, designate the highway as a route on the Interstate System.

    • (B) Designations as future interstate system routes.—
      • (i) In general.— If the Secretary determines that a highway on the National Highway System would be a logical addition or connection to the Interstate System and would qualify for designation as a route on the Interstate System under subparagraph (A) if the highway met all standards of a highway on the Interstate System, the Secretary may, upon the affirmative recommendation of the State or States in which the highway is located, designate the highway as a future Interstate System route.

      • (ii) Written agreement of states.— A designation under clause (i) shall be made only upon the written agreement of the State or States described in such clause that the highway will be constructed to meet all standards of a highway on the Interstate System by the date that is 25 years after the date of the agreement.

      • (iii) Removal of designation.—
        • (I) In general.— If the State or States described in clause (i) have not substantially completed the construction of a highway designated under this subparagraph within the time provided for under clause (ii), the Secretary shall remove the designation of the highway as a future Interstate System route.

        • (II) Effect of removal.— Removal of the designation of a highway under subclause (I) shall not preclude the Secretary from designating the highway as a route on the Interstate System under subparagraph (A) or under any other provision of law providing for addition to the Interstate System.

        • (III) Existing agreements.— An agreement described in clause (ii) that is entered into before the date of enactment of this subclause shall be deemed to include the 25-year time limitation described in that clause, regardless of any earlier construction completion date in the agreement.

      • (iv) Prohibition on referral as interstate system route.— No law, rule, regulation, map, document, or other record of the United States, or of any State or political subdivision of a State, shall refer to any highway designated as a future Interstate System route under this subparagraph, nor shall any such highway be signed or marked, as a highway on the Interstate System until such time as the highway is constructed to the geometric and construction standards for the Interstate System and has been designated as a route on the Interstate System.

    • (C) Financial responsibility.— Except as provided in this title, the designation of a highway under this paragraph shall create no additional Federal financial responsibility with respect to the highway.

  • (5) Exemption of interstate system.—
    • (A) In general.— Except as provided in subparagraph (B), the Interstate System shall not be considered to be a historic site under section 303 of title 49 or section 138 of this title, regardless of whether the Interstate System or portions or elements of the Interstate System are listed on, or eligible for listing on, the National Register of Historic Places.

    • (B) Individual elements.— Subject to subparagraph (C), the Secretary shall determine, through the administrative process established for exempting the Interstate System from section 106 of the National Historic Preservation Act (16 U.S.C. 470f), those individual elements of the Interstate System that possess national or exceptional historic significance (such as a historic bridge or a highly significant engineering feature). Such elements shall be considered to be a historic site under section 303 of title 49 or section 138 of this title, as applicable.

    • (C) Construction, maintenance, restoration, and rehabilitation activities.— Subparagraph (B) does not prohibit a State from carrying out construction, maintenance, restoration, or rehabilitation activities for a portion of the Interstate System referred to in subparagraph (B) upon compliance with section 303 of title 49 or section 138 of this title, as applicable, and section 106 of the National Historic Preservation Act (16 U.S.C. 470f).

(d) Transfer of Interstate Construction Funds.—
  • (1) Interstate construction funds not in surplus.—
    • (A) In general.— Upon application by a State and approval by the Secretary, the Secretary may transfer to the apportionment of the State under section 104 (b)(1) any amount of funds apportioned to the State under section 104 (b)(5)(A) (as in effect on the day before the date of enactment of the Transportation Equity Act for the 21st Century), if the amount does not exceed the Federal share of the costs of construction of segments of the Interstate System in the State included in the most recent Interstate System cost estimate.

    • (B) Effect of transfer.— Upon transfer of an amount under subparagraph (A), the construction on which the amount is based, as included in the most recent Interstate System cost estimate, shall not be eligible for funding under section 104 (b)(5)(A) (as in effect on the day before the date of enactment of the Transportation Equity Act for the 21st Century) or 118(c).

  • (2) Surplus interstate construction funds.— Upon application by a State and approval by the Secretary, the Secretary may transfer to the apportionment of the State under section 104 (b)(1) any amount of surplus funds apportioned to the State under section 104 (b)(5)(A) (as in effect on the day before the date of enactment of the Transportation Equity Act for the 21st Century), if the State has fully financed all work eligible under the most recent Interstate System cost estimate.

  • (3) Applicability of certain laws.— Funds transferred under this subsection shall be subject to the laws (including regulations, policies, and procedures) relating to the apportionment to which the funds are transferred.





    Apportionment

    (a) Administrative Expenses.—
    • (1) In general.— There are authorized to be appropriated from the Highway Trust Fund (other than the Mass Transit Account) to be made available to the Secretary for administrative expenses of the Federal Highway Administration—
      • (A) $353,024,000 for fiscal year 2005;

      • (B) $370,613,540 for fiscal year 2006;

      • (C) $389,079,500 for fiscal year 2007;

      • (D) $408,465,500 for fiscal year 2008; and

      • (E) $423,717,460 for fiscal year 2009.

    • (2) Purposes.— The funds authorized by this subsection shall be used—
      • (A) to administer the provisions of law to be financed from appropriations for the Federal-aid highway program and programs authorized under chapter 2; and

      • (B) to make transfers of such sums as the Secretary determines to be appropriate to the Appalachian Regional Commission for administrative activities associated with the Appalachian development highway system.

    • (3) Availability.— The funds made available under paragraph (1) shall remain available until expended.

    (b) Apportionments.— On October 1 of each fiscal year, the Secretary, after making the set-asides authorized by subsections (d) and (f) and section 130 (e), shall apportion the remainder of the sums authorized to be appropriated for expenditure on the Interstate and National Highway System program, the Congestion Mitigation and Air Quality Improvement program, the highway safety improvement program, and the Surface Transportation program for that fiscal year, among the several States in the following manner:
    • (1) National highway system component.—
      • (A) In general.— For the National Highway System (excluding funds apportioned under paragraph (4)), $40,000,000 for each of fiscal years 2005 and 2006 and $50,000,000 for each of fiscal years 2007 through 2009 for the territorial highway program under section 215, $30,000,000 for each of fiscal years 2005 through 2009 for the Alaska Highway, and the remainder apportioned as follows:
        • (i) 25 percent in the ratio that—
          • (I) the total lane miles of principal arterial routes (excluding Interstate System routes) in each State; bears to

          • (II) the total lane miles of principal arterial routes (excluding Interstate System routes) in all States.

        • (ii) 35 percent in the ratio that—
          • (I) the total vehicle miles traveled on lanes on principal arterial routes (excluding Interstate System routes) in each State; bears to

          • (II) the total vehicle miles traveled on lanes on principal arterial routes (excluding Interstate System routes) in all States.

        • (iii) 30 percent in the ratio that—
          • (I) the total diesel fuel used on highways in each State; bears to

          • (II) the total diesel fuel used on highways in all States.

        • (iv) 10 percent in the ratio that—
          • (I) the quotient obtained by dividing the total lane miles on principal arterial highways in each State by the total population of the State; bears to

          • (II) the quotient obtained by dividing the total lane miles on principal arterial highways in all States by the total population of all States.

      • (B) Minimum apportionment.— Notwithstanding subparagraph (A) and paragraph (4), each State shall receive a minimum of 1/2 of 1 percent of the funds apportioned under subparagraph (A) and paragraph (4).

    • (2) Congestion mitigation and air quality improvement program.—
      • (A) In general.— For the congestion mitigation and air quality improvement program, in the ratio that—
        • (i) the total of all weighted nonattainment and maintenance area populations in each State; bears to

        • (ii) the total of all weighted nonattainment and maintenance area populations in all States.

      • (B) Calculation of weighted nonattainment and maintenance area population.— Subject to subparagraph (C), for the purpose of subparagraph (A), the weighted nonattainment and maintenance area population shall be calculated by multiplying the population of each area in a State that was a nonattainment area or maintenance area as described in section 149 (b) for ozone or carbon monoxide by a factor of—
        • (i) 1.0 if, at the time of apportionment, the area is a maintenance area;

        • (ii) 1.0 if, at the time of the apportionment, the area is classified as a marginal ozone nonattainment area under subpart 2 of part D of title I of the Clean Air Act (42 U.S.C. 7511 et seq.);

        • (iii) 1.1 if, at the time of the apportionment, the area is classified as a moderate ozone nonattainment area under such subpart;

        • (iv) 1.2 if, at the time of the apportionment, the area is classified as a serious ozone nonattainment area under such subpart;

        • (v) 1.3 if, at the time of the apportionment, the area is classified as a severe ozone nonattainment area under such subpart;

        • (vi) 1.4 if, at the time of the apportionment, the area is classified as an extreme ozone nonattainment area under such subpart;

        • (vii) 1.0 if, at the time of the apportionment, the area is not a nonattainment or maintenance area as described in section 149 (b) for ozone, but is classified under subpart 3 of part D of title I of such Act (42 U.S.C. 7512 et seq.) as a nonattainment area described in section 149 (b) for carbon monoxide; or

        • (viii) 1.0 if, at the time of apportionment, an area is designated as nonattainment for ozone under subpart 1 of part D of title I of such Act (42 U.S.C. 7512 et seq.).

      • (C) Additional adjustment for carbon monoxide areas.— If, in addition to being designated as a nonattainment or maintenance area for ozone as described in section 149 (b), any county within the area was also classified under subpart 3 of part D of title I of the Clean Air Act (42 U.S.C. 7512 et seq.) as a nonattainment or maintenance area described in section 149 (b) for carbon monoxide, the weighted nonattainment or maintenance area population of the county, as determined under clauses (i) through (vi) or clause (viii) of subparagraph (B), shall be further multiplied by a factor of 1.2.

      • (D) Minimum apportionment.— Notwithstanding any other provision of this paragraph, each State shall receive a minimum of 1/2 of 1 percent of the funds apportioned under this paragraph.

      • (E) Determinations of population.— In determining population figures for the purposes of this paragraph, the Secretary shall use the latest available annual estimates prepared by the Secretary of Commerce.

    • (3) Surface transportation program.—
      • (A) In general.— For the surface transportation program, in accordance with the following formula:
        • (i) 25 percent of the apportionments in the ratio that—
          • (I) the total lane miles of Federal-aid highways in each State; bears to

          • (II) the total lane miles of Federal-aid highways in all States.

        • (ii) 40 percent of the apportionments in the ratio that—
          • (I) the total vehicle miles traveled on lanes on Federal-aid highways in each State; bears to

          • (II) the total vehicle miles traveled on lanes on Federal-aid highways in all States.

        • (iii) 35 percent of the apportionments in the ratio that—
          • (I) the estimated tax payments attributable to highway users in each State paid into the Highway Trust Fund (other than the Mass Transit Account) in the latest fiscal year for which data are available; bears to

          • (II) the estimated tax payments attributable to highway users in all States paid into the Highway Trust Fund (other than the Mass Transit Account) in the latest fiscal year for which data are available.

      • (B) Minimum apportionment.— Notwithstanding subparagraph (A), each State shall receive a minimum of 1/2 of 1 percent of the funds apportioned under this paragraph.

    • (4) Interstate maintenance component.— For resurfacing, restoring, rehabilitating, and reconstructing the Interstate System—
      • (A) 331/3 percent in the ratio that—
        • (i) the total lane miles on Interstate System routes open to traffic in each State; bears to

        • (ii) the total of all such lane miles in all States;

      • (B) 331/3 percent in the ratio that—
        • (i) the total vehicle miles traveled on Interstate System routes open to traffic in each State; bears to

        • (ii) the total of all such vehicle miles traveled in all States; and

      • (C) 331/3 percent in the ratio that—
        • (i) the total of each State's annual contributions to the Highway Trust Fund (other than the Mass Transit Account) attributable to commercial vehicles; bears to

        • (ii) the total of such annual contributions by all States.

    • (5) Highway safety improvement program.—
      • (A) In general.— For the highway safety improvement program, in accordance with the following formula:
        • (i) 331/3 percent of the apportionments in the ratio that—
          • (I) the total lane miles of Federal-aid highways in each State; bears to

          • (II) the total lane miles of Federal-aid highways in all States.

        • (ii) 331/3 percent of the apportionments in the ratio that—
          • (I) the total vehicle miles traveled on lanes on Federal-aid highways in each State; bears to

          • (II) the total vehicle miles traveled on lanes on Federal-aid highways in all States.

        • (iii) 331/3 percent of the apportionments in the ratio that—
          • (I) the number of fatalities on Federal-aid highways in each State in the latest fiscal year for which data are available; bears to

          • (II) the number of fatalities on Federal-aid highways in all States in the latest fiscal year for which data are available.

      • (B) Minimum apportionment.— Notwithstanding subparagraph (A), each State shall receive a minimum of one-half of 1 percent of the funds apportioned under this paragraph.

    (c) Transferability of NHS Apportionments.— A State may transfer not to exceed 50 percent of the State's apportionment under subsection (b)(1) to the apportionment of the State under subsection (b)(3). A State may transfer not to exceed 100 percent of the State's apportionment under subsection (b)(1) to the apportionment of the State under subsection (b)(3) if the State requests to make such transfer and the Secretary approves such transfer as being in the public interest, after providing notice and sufficient opportunity for public comment. Section 133 (d) shall not apply to funds transferred under this subsection.

    (d) Operation Lifesaver and High Speed Rail Corridors.—
    • (1) Operation lifesaver.— To carry out a public information and education program to help prevent and reduce motor vehicle accidents, injuries, and fatalities and to improve driver performance at railway-highway crossings—
      • (A) before making an apportionment under subsection (b)(3) for fiscal year 2005, the Secretary shall set aside $560,000 for such fiscal year; and

      • (B) there is authorized to be appropriated from the Highway Trust Fund (other than the Mass Transit Account) $560,000 for each of fiscal years 2006 through 2009.

    • (2) Railway-highway crossing hazard elimination in high speed rail corridors.—
      • (A) Funding.— To carry out the elimination of hazards at railway-highway crossings—
        • (i) before making an apportionment under subsection (b)(3) for fiscal year 2005, the Secretary shall set aside $5,250,000 for such fiscal year; and

        • (ii) there is authorized to be appropriated from the Highway Trust Fund (other than the Mass Transit Account) $7,250,000 for fiscal year 2006, $10,000,000 for fiscal year 2007, $12,500,000 for fiscal year 2008, and $15,000,000 for fiscal year 2009.

      • (B) Eligible corridors.— Subject to subparagraph (E), funds made available under subparagraph (A) shall be expended for projects in—
        • (i) 5 railway corridors selected by the Secretary in accordance with this subsection (as in effect on the day before the date of enactment of this clause);

        • (ii) 3 railway corridors selected by the Secretary in accordance with subparagraphs (C) and (D);

        • (iii) a Gulf Coast high speed railway corridor (as designated by the Secretary);

        • (iv) a Keystone high speed railway corridor from Philadelphia to Harrisburg, Pennsylvania; and

        • (v) an Empire State railway corridor from New York City to Albany to Buffalo, New York.

      • (C) Required inclusion of high speed rail lines.— A corridor selected by the Secretary under subparagraph (B) shall include rail lines where railroad speeds of 90 miles or more per hour are occurring or can reasonably be expected to occur in the future.

      • (D) Considerations in corridor selection.— In selecting corridors under subparagraph (B), the Secretary shall consider—
        • (i) projected rail ridership volume in each corridor;

        • (ii) the percentage of each corridor over which a train will be capable of operating at its maximum cruise speed taking into account such factors as topography and other traffic on the line;

        • (iii) projected benefits to nonriders such as congestion relief on other modes of transportation serving each corridor (including congestion in heavily traveled air passenger corridors);

        • (iv) the amount of State and local financial support that can reasonably be anticipated for the improvement of the line and related facilities; and

        • (v) the cooperation of the owner of the right-of-way that can reasonably be expected in the operation of high speed rail passenger service in each corridor.

      • (E) Certain improvements.— Of such set-aside, not less than $250,000 for fiscal year 2005, $1,000,000 for fiscal year 2006, $1,750,000 for fiscal year 2007, $2,250,000 for fiscal year 2008, and $3,000,000 for fiscal year 2009 shall be available for eligible improvements to the Minneapolis/St. Paul-Chicago segment of the Midwest High Speed Rail Corridor.

      • (F) Authorization of appropriations.— There is authorized to be appropriated $15,000,000 for each of fiscal years 1999 through 2003 to carry out this subsection.

    (e) Certification of Apportionments.—
    • (1) In general.— On October 1 of each fiscal year the Secretary shall certify to each of the State transportation departments the sums which he has apportioned hereunder to each State for such fiscal year. To permit the States to develop adequate plans for the utilization of apportioned sums, the Secretary shall advise each State of the amount that will be apportioned each year under this section not later than ninety days before the beginning of the fiscal year for which the sums to be apportioned are authorized, except that in the case of the Interstate System the Secretary shall advise each State ninety days prior to the apportionment of such funds.

    • (2) Notice to states.— If the Secretary has not made an apportionment under section 104, 105, or 144 by the 21st day of a fiscal year beginning after September 30, 1998, the Secretary shall transmit, by such 21st day, to the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Environment and Public Works of the Senate a written statement of the reason for not making such apportionment in a timely manner.

    (f) Metropolitan Planning.—
    • (1) Set-aside.— On October 1 of each fiscal year, the Secretary shall set aside 1.25 percent of the funds authorized to be appropriated for the Interstate maintenance, national highway system, surface transportation, congestion mitigation and air quality improvement, and highway bridge programs authorized under this title to carry out the requirements of section 134.

    • (2) Apportionment to states of set-aside funds.— These funds shall be apportioned to the States in the ratio which the population in urbanized areas or parts thereof, in each State bears to the total population in such urbanized areas in all the States as shown by the latest available census, except that no State shall receive less than one-half percent of the amount apportioned.

    • (3) Use of funds.—
      • (A) In general.— The funds apportioned to any State under paragraph (2) of this subsection shall be made available by the State to the metropolitan planning organizations responsible for carrying out the provisions of section 134 of this title, except that States receiving the minimum apportionment under paragraph (2) may, in addition, subject to the approval of the Secretary, use the funds apportioned to finance transportation planning outside of urbanized areas.

      • (B) Unused funds.— Any funds that are not used to carry out section 134 may be made available by a metropolitan planning organization to the State to fund activities under section 135.

    • (4) Distribution of funds within states.—
      • (A) In general.— The distribution within any State of the planning funds made available to agencies under paragraph (3) of this subsection shall be in accordance with a formula developed by each State and approved by the Secretary which shall consider but not necessarily be limited to, population, status of planning, attainment of air quality standards, metropolitan area transportation needs, and other factors necessary to provide for an appropriate distribution of funds to carry out the requirements of section 134 and other applicable requirements of Federal law.

      • (B) Reimbursement.— Not later than 30 days after the date of receipt by a State of a request for reimbursement of expenditures made by a metropolitan planning organization for carrying out section 134, the State shall reimburse, from funds distributed under this paragraph to the metropolitan planning organization by the State, the metropolitan planning organization for those expenditures.

    • (5) Determination of population figures.— For the purposes of determining population figures under this subsection, the Secretary shall use the most recent estimate published by the Secretary of Commerce.

    (g) Not more than 40 per centum of the amount apportioned in any fiscal year to each State in accordance with sections 130 and 144 may be transferred from the apportionment under one section to the apportionment under any other of such sections if such a transfer is requested by the State transportation department and is approved by the Secretary as being in the public interest. The Secretary may approve the transfer of 100 per centum of the apportionment under one such section to the apportionment under any other of such sections if such transfer is requested by the State transportation department, and is approved by the Secretary as being in the public interest, if he has received satisfactory assurances from such State transportation department that the purposes of the program from which such funds are to be transferred have been met. A State may transfer not to exceed 50 percent of the State's apportionment under section 144 in any fiscal year to the apportionment of such State under subsection (b)(1) or subsection (b)(3) of this section. Any transfer to subsection (b)(3) shall not be subject to section 133 (d). Nothing in this subsection authorizes the transfer of any amount apportioned from the Highway Trust Fund to any apportionment the funds for which were not from the Highway Trust Fund, and nothing in this subsection authorizes the transfer of any amount apportioned from funds not from the Highway Trust Fund to any apportionment the funds for which were from the Highway Trust Fund.

    (h) Recreational Trails Program.—
    • (1) Administrative costs.— Before apportioning sums authorized to be appropriated to carry out the recreational trails program under section 206, the Secretary shall deduct for administrative, research, technical assistance, and training expenses for such program $840,000 for each of fiscal years 2005 through 2009. The Secretary may enter into contracts with for-profit organizations or contracts, partnerships, or cooperative agreements with other government agencies, institutions of higher learning, or nonprofit organizations to perform these tasks.

    • (2) Apportionment to the states.— The Secretary shall apportion the sums authorized to be appropriated for expenditure on the recreational trails program for each fiscal year, among the States in the following manner:
      • (A) 50 percent of that amount shall be apportioned equally among eligible States.

      • (B) 50 percent of that amount shall be apportioned among eligible States in amounts proportionate to the degree of non-highway recreational fuel use in each of those States during the preceding year.

    • (3) Eligible state defined.— In this section, the term "eligible State" means a State that meets the requirements of section 206 (c).

    (i) Audits of Highway Trust Fund.— From administrative funds made available under subsection (a), the Secretary may reimburse the Office of Inspector General of the Department of Transportation for the conduct of annual audits of financial statements in accordance with section 3521 of title 31.

    (j) Report to Congress.— The Secretary shall submit to Congress a report, and also make such report available to the public in a user-friendly format via the Internet, for each fiscal year on—
    • (1) the amount obligated, by each State, for Federal-aid highways and highway safety construction programs during the preceding fiscal year;

    • (2) the balance, as of the last day of the preceding fiscal year, of the unobligated apportionment of each State by fiscal year under this section and sections 105 and 144;

    • (3) the balance of unobligated sums available for expenditure at the discretion of the Secretary for such highways and programs for the fiscal year; and

    • (4) the rates of obligation of funds apportioned or set aside under this section and sections 105, 133, and 144, according to—
      • (A) program;

      • (B) funding category or subcategory;

      • (C) type of improvement;

      • (D) State; and

      • (E) sub-State geographic area, including urbanized and rural areas, on the basis of the population of each such area.

    (k) Transfer of Highway and Transit Funds.—
    • (1) Transfer of highway funds for transit projects.—
      • (A) In general.— Subject to subparagraph (B), funds made available for transit projects or transportation planning under this title may be transferred to and administered by the Secretary in accordance with chapter 53 of title 49.

      • (B) Non-federal share.— The provisions of this title relating to the non-Federal share shall apply to the funds transferred under subparagraph (A).

    • (2) Transfer of transit funds for highway projects.—
      • (A) In general.— Subject to subparagraph (B), funds made available for highway projects or transportation planning under chapter 53 of title 49 may be transferred to and administered by the Secretary in accordance with this title.

      • (B) Non-federal share.— The provisions of chapter 53 of title 49 relating to the non-Federal share shall apply to funds transferred under subparagraph (A).

    • (3) Transfer of funds among states or to federal highway administration.—
      • (A) In general.— Subject to subparagraphs (B) and (C), the Secretary may, at the request of a State, transfer funds apportioned or allocated under this title to the State to another State, or to the Federal Highway Administration, for the purpose of funding one or more projects that are eligible for assistance with funds so apportioned or allocated.

      • (B) Apportionment.— The transfer shall have no effect on any apportionment of funds to a State under this section or section 105 or 144.

      • (C) Surface transportation program.— Funds that are apportioned or allocated to a State under subsection (b)(3) and attributed to an urbanized area of a State with a population of over 200,000 individuals under section 133 (d)(3) may be transferred under this paragraph only if the metropolitan planning organization designated for the area concurs, in writing, with the transfer request.

    • (4) Transfer of obligation authority.— Obligation authority for funds transferred under this subsection shall be transferred in the same manner and amount as the funds for the projects that are transferred under this subsection.

    (l) Effect of Certain Delay in Deposits Into Highway Trust Fund.— Notwithstanding any other provision of law, deposits into the Highway Trust Fund resulting from the application of section 901(e) of the Taxpayer Relief Act of 1997 (111 Stat. 872) shall not be taken into account in determining the apportionments and allocations that any State shall be entitled to receive under the Transportation Equity Act for the 21st Century and this title.

    Equity bonus program

    (a) Program.—
    • (1) In general.— Subject to subsections (c) and (d), for each of fiscal years 2005 through 2009, the Secretary shall allocate among the States amounts sufficient to ensure that no State receives a percentage of the total apportionments for the fiscal year for the programs specified in paragraph (2) that is less than the percentage calculated under subsection (b).

    • (2) Specific programs.— The programs referred to in subsection (a) are—
      • (A) the Interstate maintenance program under section 119;

      • (B) the national highway system program under section 103;

      • (C) the highway bridge program under section 144;

      • (D) the surface transportation program under section 133;

      • (E) the highway safety improvement program under section 148;

      • (F) the congestion mitigation and air quality improvement program under section 149;

      • (G) metropolitan planning programs under section 104 (f);

      • (H) the high priority projects program under section 117;

      • (I) the equity bonus program under this section;

      • (J) the Appalachian development highway system program under subtitle IV of title 40;

      • (K) the recreational trails program under section 206;

      • (L) the safe routes to school program under section 1404 of the SAFETEA-LU;

      • (M) the rail-highway grade crossing program under section 130; and

      • (N) the coordinated border infrastructure program under section 1303 of the SAFETEA-LU.

    (b) State Percentage.—
    • (1) In general.— The percentage referred to in subsection (a) for each State shall be—
      • (A) for each of fiscal years 2005 and 2006, 90.5 percent, for fiscal year 2007, 91.5 percent, and for each of fiscal years 2008 and 2009, 92 percent, of the quotient obtained by dividing—
        • (i) the estimated tax payments attributable to highway users in the State paid into the Highway Trust Fund (other than the Mass Transit Account) in the most recent fiscal year for which data are available; by

        • (ii) the estimated tax payments attributable to highway users in all States paid into the Highway Trust Fund (other than the Mass Transit Account) for the fiscal year; or

      • (B) for a State with a total population density of less than 40 persons per square mile (as reported in the decennial census conducted by the Federal Government in 2000) and of which at least 1.25 percent of the total acreage is under Federal jurisdiction, based on the report of the General Services Administration entitled "Federal Real Property Profile" and dated September 30, 2004, a State with a total population of less than 1,000,000 (as reported in that decennial census), a State with a median household income of less than $35,000 (as reported in that decennial census), a State with a fatality rate during 2002 on Interstate highways that is greater than one fatality for each 100,000,000 vehicle miles traveled on Interstate highways, or a State with an indexed, State motor fuels excise tax rate higher than 150 percent of the Federal motor fuels excise tax rate as of the date of enactment of the SAFETEA-LU, the greater of—
        • (i) the applicable percentage under subparagraph (A); or

        • (ii) the average percentage of the State's share of total apportionments for the period of fiscal years 1998 through 2003 for the programs specified in paragraph (2).

    • (2) Specific programs.— The programs referred to in paragraph (1)(B)(ii) are (as in effect on the day before the date of enactment of the SAFETEA-LU)—
      • (A) the Interstate maintenance program under section 119;

      • (B) the national highway system program under section 103;

      • (C) the highway bridge program under section 144;

      • (D) the surface transportation program under section 133;

      • (E) the recreational trails program under section 206;

      • (F) the high priority projects program under section 117;

      • (G) the minimum guarantee provided under this section;

      • (H) revenue aligned budget authority amounts provided under section 110;

      • (I) the congestion mitigation and air quality improvement program under section 149;

      • (J) the Appalachian development highway system program under subtitle IV of title 40; and

      • (K) metropolitan planning programs under section 104 (f).

    (c) Special Rules.—
    • (1) Minimum combined allocation.— For each fiscal year, before making the allocations under subsection (a)(1), the Secretary shall allocate among the States amounts sufficient to ensure that no State receives a combined total of amounts allocated under subsection (a)(1), apportionments for the programs specified in subsection (a)(2), and amounts allocated under this subsection, that is less than the following percentages of the average for fiscal years 1998 through 2003 of the annual apportionments for the State for all programs specified in subsection (b)(2):
      • (A) For fiscal year 2005, 117 percent.

      • (B) For fiscal year 2006, 118 percent.

      • (C) For fiscal year 2007, 119 percent.

      • (D) For fiscal year 2008, 120 percent.

      • (E) For fiscal year 2009, 121 percent.

    • (2) No negative adjustment.— No negative adjustment shall be made under subsection (a)(1) to the apportionment of any State.

    (d) Treatment of Funds.—
    • (1) Programmatic distribution.— The Secretary shall apportion the amounts made available under this section that exceed $2,639,000,000 so that the amount apportioned to each State under this paragraph for each program referred to in subparagraphs (A) through (F) of subsection (a)(2) is equal to the amount determined by multiplying the amount to be apportioned under this paragraph by the ratio that—
      • (A) the amount of funds apportioned to each State for each program referred to in subparagraphs (A) through (F) of subsection (a)(2) for a fiscal year; bears to

      • (B) the total amount of funds apportioned to such State for all such programs for such fiscal year.

    • (2) Remaining distribution.— The Secretary shall administer the remainder of funds made available under this section to the States in accordance with section 104 (b)(3), except that paragraphs (1) through (3) of section 133 (d) shall not apply to amounts administered pursuant to this paragraph.

    (e) Metro Planning Set Aside.— Notwithstanding section 104 (f), no set aside provided for under that section shall apply to funds allocated under this section.

    (f) Authorization of Appropriations.— There are authorized to be appropriated from the Highway Trust Fund (other than the Mass Transit Account) such sums as are necessary to carry out this section for each of fiscal years 2005 through 2009.



    Project approval and oversight

    (a) In General.—
    • (1) Submission of plans, specifications, and estimates.— Except as otherwise provided in this section, each State transportation department shall submit to the Secretary for approval such plans, specifications, and estimates for each proposed project as the Secretary may require.

    • (2) Project agreement.— The Secretary shall act on the plans, specifications, and estimates as soon as practicable after the date of their submission and shall enter into a formal project agreement with the State transportation department formalizing the conditions of the project approval.

    • (3) Contractual obligation.— The execution of the project agreement shall be deemed a contractual obligation of the Federal Government for the payment of the Federal share of the cost of the project.

    • (4) Guidance.— In taking action under this subsection, the Secretary shall be guided by section 109.

    (b) Project Agreement.—
    • (1) Provision of state funds.— The project agreement shall make provision for State funds required to pay the State's non-Federal share of the cost of construction of the project and to pay for maintenance of the project after completion of construction.

    • (2) Representations of state.— If a part of the project is to be constructed at the expense of, or in cooperation with, political subdivisions of the State, the Secretary may rely on representations made by the State transportation department with respect to the arrangements or agreements made by the State transportation department and appropriate local officials for ensuring that the non-Federal contribution will be provided under paragraph (1).

    (c) Assumption by States of Responsibilities of the Secretary.—
    • (1) Non-interstate nhs projects.— For projects under this title that are on the National Highway System but not on the Interstate System, the State may assume the responsibilities of the Secretary under this title for design, plans, specifications, estimates, contract awards, and inspections of projects unless the State or the Secretary determines that such assumption is not appropriate.

    • (2) Non-nhs projects.— For projects under this title that are not on the National Highway System, the State shall assume the responsibilities of the Secretary under this title for design, plans, specifications, estimates, contract awards, and inspection of projects, unless the State determines that such assumption is not appropriate.

    • (3) Agreement.— The Secretary and the State shall enter into an agreement relating to the extent to which the State assumes the responsibilities of the Secretary under this subsection.

    • (4) Limitation on authority of secretary.— The Secretary may not assume any greater responsibility than the Secretary is permitted under this title on September 30, 1997, except upon agreement by the Secretary and the State.

    (d) Responsibilities of the Secretary.— Nothing in this section, section 133, or section 149 shall affect or discharge any responsibility or obligation of the Secretary under—
    • (1) section 113 or 114; or

    • (2) any Federal law other than this title (including section 5333 of title 49).

    (e) Value Engineering Analysis.—
    • (1) Definition of value engineering analysis.—
      • (A) In general.— In this subsection, the term "value engineering analysis" means a systematic process of review and analysis of a project, during the concept and design phases, by a multidisciplined team of persons not involved in the project, that is conducted to provide recommendations such as those described in subparagraph (B) for—
        • (i) providing the needed functions safely, reliably, and at the lowest overall cost;

        • (ii) improving the value and quality of the project; and

        • (iii) reducing the time to complete the project.

      • (B) Inclusions.— The recommendations referred to in subparagraph (A) include, with respect to a project—
        • (i) combining or eliminating otherwise inefficient use of costly parts of the original proposed design for the project; and

        • (ii) completely redesigning the project using different technologies, materials, or methods so as to accomplish the original purpose of the project.

    • (2) Analysis.— The State shall provide a value engineering analysis or other cost-reduction analysis for—
      • (A) each project on the Federal-aid system with an estimated total cost of $25,000,000 or more;

      • (B) a bridge project with an estimated total cost of $20,000,000 or more; and

      • (C) any other project the Secretary determines to be appropriate.

    • (3) Major projects.— The Secretary may require more than 1 analysis described in paragraph (2) for a major project described in subsection (h).

    • (4) Requirements.— Analyses described in paragraph (1) for a bridge project shall—
      • (A) include bridge substructure requirements based on construction material; and

      • (B) be evaluated—
        • (i) on engineering and economic bases, taking into consideration acceptable designs for bridges; and

        • (ii) using an analysis of life-cycle costs and duration of project construction.

    (f) Life-Cycle Cost Analysis.—
    • (1) Use of life-cycle cost analysis.— The Secretary shall develop recommendations for the States to conduct life-cycle cost analyses. The recommendations shall be based on the principles contained in section 2 of Executive Order No. 12893 and shall be developed in consultation with the American Association of State Highway and Transportation Officials. The Secretary shall not require a State to conduct a life-cycle cost analysis for any project as a result of the recommendations required under this subsection.

    • (2) Life-cycle cost analysis defined.— In this subsection, the term "life-cycle cost analysis" means a process for evaluating the total economic worth of a usable project segment by analyzing initial costs and discounted future costs, such as maintenance, user costs, reconstruction, rehabilitation, restoring, and resurfacing costs, over the life of the project segment.

    (g) Oversight Program.—
    • (1) Establishment.—
      • (A) In general.— The Secretary shall establish an oversight program to monitor the effective and efficient use of funds authorized to carry out this title.

      • (B) Minimum requirement.— At a minimum, the program shall be responsive to all areas relating to financial integrity and project delivery.

    • (2) Financial integrity.—
      • (A) Financial management systems.— The Secretary shall perform annual reviews that address elements of the State transportation departments' financial management systems that affect projects approved under subsection (a).

      • (B) Project costs.— The Secretary shall develop minimum standards for estimating project costs and shall periodically evaluate the practices of States for estimating project costs, awarding contracts, and reducing project costs.

    • (3) Project delivery.— The Secretary shall perform annual reviews that address elements of the project delivery system of a State, which elements include one or more activities that are involved in the life cycle of a project from conception to completion of the project.

    • (4) Responsibility of the states.—
      • (A) In general.— The States shall be responsible for determining that subrecipients of Federal funds under this title have—
        • (i) adequate project delivery systems for projects approved under this section; and

        • (ii) sufficient accounting controls to properly manage such Federal funds.

      • (B) Periodic review.— The Secretary shall periodically review the monitoring of subrecipients by the States.

    • (5) Specific oversight responsibilities.—
      • (A) Effect of section.— Nothing in this section shall affect or discharge any oversight responsibility of the Secretary specifically provided for under this title or other Federal law.

      • (B) Appalachian development highways.— The Secretary shall retain full oversight responsibilities for the design and construction of all Appalachian development highways under section 14501 of title 40.

    (h) Major Projects.—
    • (1) In general.— Notwithstanding any other provision of this section, a recipient of Federal financial assistance for a project under this title with an estimated total cost of $500,000,000 or more, and recipients for such other projects as may be identified by the Secretary, shall submit to the Secretary for each project—
      • (A) a project management plan; and

      • (B) an annual financial plan.

    • (2) Project management plan.— A project management plan shall document—
      • (A) the procedures and processes that are in effect to provide timely information to the project decisionmakers to effectively manage the scope, costs, schedules, and quality of, and the Federal requirements applicable to, the project; and

      • (B) the role of the agency leadership and management team in the delivery of the project.

    • (3) Financial plan.— A financial plan shall—
      • (A) be based on detailed estimates of the cost to complete the project; and

      • (B) provide for the annual submission of updates to the Secretary that are based on reasonable assumptions, as determined by the Secretary, of future increases in the cost to complete the project.

    (i) Other Projects.— A recipient of Federal financial assistance for a project under this title with an estimated total cost of $100,000,000 or more that is not covered by subsection (h) shall prepare an annual financial plan. Annual financial plans prepared under this subsection shall be made available to the Secretary for review upon the request of the Secretary.



    Acquisition of rights-of-wayInterstate System

    (a) In any case in which the Secretary is requested by a State to acquire lands or interests in lands (including within the term "interests in lands", the control of access thereto from adjoining lands) required by such State for right-of-way or other purposes in connection with the prosecution of any project for the construction, reconstruction, or improvement of any section of the Interstate System, the Secretary is authorized, in the name of the United States and prior to the approval of title by the Attorney General, to acquire, enter upon, and take possession of such lands or interests in lands by purchase, donation, condemnation, or otherwise in accordance with the laws of the United States (including sections 3114 to 3116 and 3118 of title 40), if—
    • (1) the Secretary has determined either that the State is unable to acquire necessary lands or interests in lands, or is unable to acquire such lands or interests in lands with sufficient promptness; and

    • (2) the State has agreed with the Secretary to pay, at such time as may be specified by the Secretary an amount equal to 10 per centum of the costs incurred by the Secretary, in acquiring such lands or interests in lands, or such lesser percentage which represents the State's pro rata share of project costs as determined in accordance with subsection (c) of section 120 of this title.

      The authority granted by this section shall also apply to lands and interests in lands received as grants of land from the United States and owned or held by railroads or other corporations.

    (b) The costs incurred by the Secretary in acquiring any such lands or interests in lands may include the cost of examination and abstract of title, certificate of title, advertising, and any fees incidental to such acquisition. All costs incurred by the Secretary in connection with the acquisition of any such lands or interests in lands shall be paid from the funds for construction, reconstruction, or improvement of the Interstate System apportioned to the State upon the request of which such lands or interests in lands are acquired, and any sums paid to the Secretary by such State as its share of the costs of acquisition of such lands or interests in lands shall be deposited in the Treasury to the credit of the appropriation for Federal-aid highways and shall be credited to the amount apportioned to such State as its apportionment of funds for construction, reconstruction, or improvement of the Interstate System, or shall be deducted from other moneys due the State for reimbursement from funds authorized to be appropriated under section 108(b) of the Federal-Aid Highway Act of 1956.

    (c) The Secretary is further authorized and directed by proper deed, executed in the name of the United States, to convey any such lands or interests in lands acquired in any State under the provisions of this section, except the outside five feet of any such right-of-way in any State which does not provide control of access, to the State transportation department of such State or such political subdivision thereof as its laws may provide, upon such terms and conditions as to such lands or interests in lands as may be agreed upon by the Secretary and the State transportation department or political subdivisions to which the conveyance is to be made. Whenever the State makes provision for control of access satisfactory to the Secretary, the outside five feet then shall be conveyed to the State by the Secretary, as herein provided.

    (d) Whenever rights-of-way, including control of access, on the Interstate System are required over lands or interests in lands owned by the United States, the Secretary may make such arrangements with the agency having jurisdiction over such lands as may be necessary to give the State or other person constructing the projects on such lands adequate rights-of-way and control of access thereto from adjoining lands, and any such agency is directed to cooperate with the Secretary in this connection.

    Advance acquisition of real property

    (a) In General.—
    • (1) Availability of funds.— For the purpose of facilitating the timely and economical acquisition of real property for a transportation improvement eligible for funding under this title, the Secretary, upon the request of a State, may make available, for the acquisition of real property, such funds apportioned to the State as may be expended on the transportation improvement, under such rules and regulations as the Secretary may issue.

    • (2) Construction.— The agreement between the Secretary and the State for the reimbursement of the cost of the real property shall provide for the actual construction of the transportation improvement within a period not to exceed 20 years following the fiscal year for which the request is made, unless the Secretary determines that a longer period is reasonable.

    (b) Federal participation in the cost of rights-of-way acquired under subsection (a) of this section shall not exceed the Federal pro rata share applicable to the class of funds from which Federal reimbursement is made.

    (c) Early Acquisition of Rights-of-Way.—
    • (1) General rule.— Subject to paragraph (2), funds apportioned to a State under this title may be used to participate in the payment of—
      • (A) costs incurred by the State for acquisition of rights-of-way, acquired in advance of any Federal approval or authorization, if the rights-of-way are subsequently incorporated into a project eligible for surface transportation program funds; and

      • (B) costs incurred by the State for the acquisition of land necessary to preserve environmental and scenic values.

    • (2) Terms and conditions.— The Federal share payable of the costs described in paragraph (1) shall be eligible for reimbursement out of funds apportioned to a State under this title when the rights-of-way acquired are incorporated into a project eligible for surface transportation program funds, if the State demonstrates to the Secretary and the Secretary finds that—
      • (A) any land acquired, and relocation assistance provided, complied with the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970;

      • (B) the requirements of title VI of the Civil Rights Act of 1964 have been complied with;

      • (C) the State has a mandatory comprehensive and coordinated land use, environment, and transportation planning process under State law and the acquisition is certified by the Governor as consistent with the State plans before the acquisition;

      • (D) the acquisition is determined in advance by the Governor to be consistent with the State transportation planning process pursuant to section 135 of this title;

      • (E) the alternative for which the right-of-way is acquired is selected by the State pursuant to regulations to be issued by the Secretary which provide for the consideration of the environmental impacts of various alternatives;

      • (F) before the time that the cost incurred by a State is approved for Federal participation, environmental compliance pursuant to the National Environmental Policy Act has been completed for the project for which the right-of-way was acquired by the State, and the acquisition has been approved by the Secretary under this Act, and in compliance with section 303 of title 49, section 7 of the Endangered Species Act, and all other applicable environmental laws shall be identified by the Secretary in regulations; and

      • (G) before the time that the cost incurred by a State is approved for Federal participation, both the Secretary and the Administrator of the Environmental Protection Agency have concurred that the property acquired in advance of Federal approval or authorization did not influence the environmental assessment of the project, the decision relative to the need to construct the project, or the selection of the project design or location.



        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 transportation departments. 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. 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 transportation departments, may develop criteria to implement paragraph (1). In developing criteria under this paragraph, the Secretary shall consider—
          • (A) 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;

          • (B) the publication entitled "Flexibility in Highway Design" of the Federal Highway Administration;

          • (C) "Eight Characteristics of Process to Yield Excellence and the Seven Qualities of Excellence in Transportation Design" developed by the conference held during 1998 entitled "Thinking Beyond the Pavement National Workshop on Integrating Highway Development with Communities and the Environment while Maintaining Safety and Performance"; and

          • (D) any other material that the Secretary determines to be appropriate.

        (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 transportation 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) Installation of Safety Devices.—
        • (1) Highway and railroad grade crossings and drawbridges.— 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.

        • (2) Temporary traffic control devices.— No funds shall be approved for expenditure on any Federal-aid highway, or highway affected under chapter 2, unless proper temporary traffic control devices to improve safety in work zones will be installed and maintained during construction, utility, and maintenance operations on that portion of the highway with respect to which such expenditures are to be made. Installation and maintenance of the devices shall be in accordance with the Manual on Uniform Traffic Control Devices.

        (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) Not later than January 30, 1971, the Secretary shall issue 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 value 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.

        (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) Protection of Nonmotorized Transportation Traffic.— The Secretary shall not approve any project or take any regulatory action under this title that will result in the severance of an existing major route or have significant adverse impact on the safety for nonmotorized transportation traffic and light motorcycles, unless such project or regulatory action provides for a reasonable alternate route or such a route exists.

        (n) 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.

        (o) Compliance With State Laws for Non-NHS 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.

        (p) 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).

        (q) Phase Construction.— Safety considerations for a project under this title may be met by phase construction consistent with the operative safety management system established in accordance with section 303 or in accordance with a statewide transportation improvement program approved by the Secretary.



        Revenue aligned budget authority

        (a) In General.—
        • (1) Allocation.— On October 15 of fiscal year 2007 and each fiscal year thereafter, the Secretary shall allocate for such fiscal year and the succeeding fiscal year an amount of funds equal to the amount determined pursuant to section 251(b)(1)(B)(ii)(I)(cc) of the Balanced Budget and Emergency Deficit Control Act of 1985 (2 U.S.C 901(b)(2)(B)(ii)(I)(cc)) if the amount determined pursuant to such section for such fiscal year is greater than zero.

        • (2) Reduction.— If the amount determined pursuant to section 251(b)(1)(B)(ii)(I)(cc) of the Balanced Budget and Emergency Deficit Control Act of 1985 (2 U.S.C 901(b)(2)(B)(ii)(I)(cc)) for fiscal year 2007 or any fiscal year thereafter is less than zero, the Secretary on October 15 of such fiscal year shall reduce proportionately the amount of sums authorized to be appropriated from the Highway Trust Fund (other than the Mass Transit Account) for such fiscal year and the succeeding fiscal year to carry out each of the Federal-aid highway and highway safety construction programs (other than emergency relief) and the motor carrier safety grant program by an aggregate amount equal to the amount determined pursuant to such section. No reduction under this paragraph and no reduction under section 1102 (h), and no reduction under title VIII or any amendment made by title VIII, of the SAFETEA-LU shall be made for a fiscal year if, as of October 1 of such fiscal year the balance in the Highway Trust Fund (other than the Mass Transit Account) exceeds $6,000,000,000.

        (b) General Distribution.— The Secretary shall—
        • (1) determine the ratio that—
          • (A) the sums authorized to be appropriated from the Highway Trust Fund (other than the Mass Transit Account) for each of the Federal-aid highway and highway safety construction programs (other than the equity bonus program) and the motor carrier safety grant program for which funds are allocated from such Trust Fund by the Secretary under this title, the SAFETEA-LU, and subchapter I of chapter 311 of title 49 for a fiscal year, bears to

          • (B) the total of all sums authorized to be appropriated from such Trust Fund for such programs for such fiscal year;

        • (2) multiply the ratio determined under paragraph (1) by the total amount of funds to be allocated under subsection (a)(1) for such fiscal year;

        • (3) allocate the amount determined under paragraph (2) among such programs in the ratio that—
          • (A) the sums authorized to be appropriated from such Trust Fund for each of such programs for such fiscal year, bears to

          • (B) the sums authorized to be appropriated from such Trust Fund for all such programs for such fiscal year; and

        • (4) allocate the remainder of the funds to be allocated under subsection (a)(1) for such fiscal year to the States in the ratio that—
          • (A) the total of all funds authorized to be appropriated from such Trust Fund for Federal-aid highway and highway safety construction programs that are apportioned to each State for such fiscal year but for this section, bears to

          • (B) the total of all funds authorized to be appropriated from such Trust Fund for such programs that are apportioned to all States for such fiscal year but for this section.

        (c) State Programmatic Distribution.— Of the funds to be apportioned to each State under subsection (b)(4) for a fiscal year, the Secretary shall ensure that such funds are apportioned for the Interstate and National Highway System program, the bridge program, the surface transportation program, the highway safety improvement program, and the congestion mitigation air quality improvement program in the same ratio that each State is apportioned funds for such programs for such fiscal year but for this section.

        (d) Authorization of Appropriations.— There are authorized to be appropriated from the Highway Trust Fund (other than the Mass Transit Account) such sums as may be necessary to carry out this section for fiscal years beginning after September 30, 1998.

        (e) After making any calculation necessary to implement this section for fiscal year 2001, the amount available under paragraph (a)(1) shall be increased by $128,752,000. The amounts added under this subsection shall not apply to any calculation in any other fiscal year.

        (f) For fiscal year 2001, prior to making any distribution under this section, $22,029,000 of the allocation under paragraph (a)(1) shall be available only for each program authorized under chapter 53 of title 49, United States Code, and title III of Public Law 105-178, in proportion to each such program's share of the total authorization in section 5338 (other than 5338(h)) of such title and sections 3037 and 3038 of such Public Law, under the terms and conditions of chapter 53 of such title.

        (g) For fiscal year 2001, prior to making any distribution under this section, $399,000 of the allocation under paragraph (a)(1) shall be available only for motor carrier safety programs under sections 31104 and 31107 of title 49, United States Code; $274,000 for NHTSA operations and research under section 403 of title 23, United States Code; and $787,000 for NHTSA highway traffic safety grants under chapter 4 of title 23, United States Code.

        Agreements relating to use of and access to rights-of-wayInterstate System

        (a) In General.— All agreements between the Secretary and the State transportation 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-of-way of the Interstate System. Such agreements may, however, authorize a State or political subdivision thereof to use or permit the use of the airspace above and below the established grade line of the highway pavement for such purposes as will not impair the full use and safety of the highway, as will not require or permit vehicular access to such space directly from such established grade line of the highway, or otherwise interfere in any way with the free flow of traffic on the Interstate System. Nothing in this section, or in any agreement entered into under this section, shall require the discontinuance, obstruction, or removal of any establishment for serving motor vehicle users on any highway which has been, or is hereafter, designated as a highway or route on the Interstate System
        • (1) if such establishment
          • (A) was in existence before January 1, 1960,

          • (B) is owned by a State, and

          • (C) is operated through concessionaries or otherwise, and

        • (2) if all access to, and exits from, such establishment conform to the standards established for such a highway under this title.

        (b) Vending Machines.— Notwithstanding subsection (a), any State may permit the placement of vending machines in rest and recreation areas, and in safety rest areas, constructed or located on rights-of-way of the Interstate System in such State. Such vending machines may only dispense such food, drink, and other articles as the State transportation department determines are appropriate and desirable. Such vending machines may only be operated by the State. In permitting the placement of vending machines, the State shall give priority to vending machines which are operated through the State licensing agency designated pursuant to section 2(a)(5) of the Act of June 20, 1936, commonly known as the "Randolph-Sheppard Act" (20 U.S.C. 107a (a)(5)). The costs of installation, operation, and maintenance of vending machines shall not be eligible for Federal assistance under this title.

        (c) Motorist Call Boxes.—
        • (1) In general.— Notwithstanding subsection (a), a State may permit the placement of motorist call boxes on rights-of-way of the National Highway System. Such motorist call boxes may include the identification and sponsorship logos of such call boxes.

        • (2) Sponsorship logos.—
          • (A) Approval by state and local agencies.— All call box installations displaying sponsorship logos under this subsection shall be approved by the highway agencies having jurisdiction of the highway on which they are located.

          • (B) Size on box.— A sponsorship logo may be placed on the call box in a dimension not to exceed the size of the call box or a total dimension in excess of 12 inches by 18 inches.

          • (C) Size on identification sign.— Sponsorship logos in a dimension not to exceed 12 inches by 30 inches may be displayed on a call box identification sign affixed to the call box post.

          • (D) Spacing of signs.— Sponsorship logos affixed to an identification sign on a call box post may be located on the rights-of-way at intervals not more frequently than 1 per every 5 miles.

          • (E) Distribution throughout state.— Within a State, at least 20 percent of the call boxes displaying sponsorship logos shall be located on highways outside of urbanized areas with a population greater than 50,000.

        • (3) Nonsafety hazards.— The call boxes and their location, posts, foundations, and mountings shall be consistent with requirements of the Manual on Uniform Traffic Control Devices or any requirements deemed necessary by the Secretary to assure that the call boxes shall not be a safety hazard to motorists.





          Letting of contracts

          (a) In all cases where the construction is to be performed by the State transportation department or under its supervision, a request for submission of bids shall be made by advertisement unless some other method is approved by the Secretary. The Secretary shall require such plans and specifications and such methods of bidding as shall be effective in securing competition.

          (b) Bidding Requirements.—
          • (1) In general.— Subject to paragraphs (2) and (3), construction of each project, subject to the provisions of subsection (a) of this section, shall be performed by contract awarded by competitive bidding, unless the State transportation department demonstrates, to the satisfaction of the Secretary, that some other method is more cost effective or that an emergency exists. Contracts for the construction of each project shall be awarded only on the basis of the lowest responsive bid submitted by a bidder meeting established criteria of responsibility. No requirement or obligation shall be imposed as a condition precedent to the award of a contract to such bidder for a project, or to the Secretary's concurrence in the award of a contract to such bidder, unless such requirement or obligation is otherwise lawful and is specifically set forth in the advertised specifications.

          • (2) Contracting for engineering and design services.—
            • (A) General rule.— Subject to paragraph (3), each contract for program management, construction management, feasibility studies, preliminary engineering, design, engineering, surveying, mapping, or architectural related services with respect to a project subject to the provisions of subsection (a) of this section shall be awarded in the same manner as a contract for architectural and engineering services is negotiated under chapter 11 of title 40.

            • (B) Performance and audits.— Any contract or subcontract awarded in accordance with subparagraph (A), whether funded in whole or in part with Federal-aid highway funds, shall be performed and audited in compliance with cost principles contained in the Federal Acquisition Regulations of part 31 of title 48, Code of Federal Regulations.

            • (C) Indirect cost rates.— Instead of performing its own audits, a recipient of funds under a contract or subcontract awarded in accordance with subparagraph (A) shall accept indirect cost rates established in accordance with the Federal Acquisition Regulations for 1-year applicable accounting periods by a cognizant Federal or State government agency, if such rates are not currently under dispute.

            • (D) Application of rates.— Once a firm's indirect cost rates are accepted under this paragraph, the recipient of the funds shall apply such rates for the purposes of contract estimation, negotiation, administration, reporting, and contract payment and shall not be limited by administrative or de facto ceilings of any kind.

            • (E) Prenotification; confidentiality of data.— A recipient of funds requesting or using the cost and rate data described in subparagraph (D) shall notify any affected firm before such request or use. Such data shall be confidential and shall not be accessible or provided, in whole or in part, to another firm or to any government agency which is not part of the group of agencies sharing cost data under this paragraph, except by written permission of the audited firm. If prohibited by law, such cost and rate data shall not be disclosed under any circumstances.

            • (F) Subparagraphs (B), (C), (D) and (E) herein shall not apply to the States of West Virginia or Minnesota.

          • (3) Design-build contracting.—
            • (A) In general.— A State transportation department or local transportation agency may award a design-build contract for a qualified project described in subparagraph (C) using any procurement process permitted by applicable State and local law.

            • (B) Limitation on final design.— Final design under a design-build contract referred to in subparagraph (A) shall not commence before compliance with section 102 of the National Environmental Policy Act of 1969 (42 U.S.C. 4332).

            • (C) Qualified projects.— A qualified project referred to in subparagraph (A) is a project under this chapter (including intermodal projects) for which the Secretary has approved the use of design-build contracting under criteria specified in regulations issued by the Secretary.

            • (D) Regulatory process.— Not later than 90 days after the date of enactment of the SAFETEA-LU, the Secretary shall issue revised regulations under section 1307(c) of the Transportation Equity Act for 21st Century (23 U.S.C. 112 note ; 112 Stat. 230) that—
              • (i) do not preclude a State transportation department or local transportation agency, prior to compliance with section 102 of the National Environmental Policy Act of 1969 (42 U.S.C. 4332), from—
                • (I) issuing requests for proposals;

                • (II) proceeding with awards of design-build contracts; or

                • (III) issuing notices to proceed with preliminary design work under design-build contracts;

              • (ii) require that the State transportation department or local transportation agency receive concurrence from the Secretary before carrying out an activity under clause (i); and

              • (iii) preclude the design-build contractor from proceeding with final design or construction of any permanent improvement prior to completion of the process under such section 102.

            • (E) Design-build contract defined.— In this paragraph, the term "design-build contract" means an agreement that provides for design and construction of a project by a contractor, regardless of whether the agreement is in the form of a design-build contract, a franchise agreement, or any other form of contract approved by the Secretary.

          (c) The Secretary shall require as a condition precedent to his approval of each contract awarded by competitive bidding pursuant to subsection (b) of this section, and subject to the provisions of this section, a sworn statement, executed by, or on behalf of, the person, firm, association, or corporation to whom such contract is to be awarded, certifying that such person, firm, association, or corporation has not, either directly or indirectly, entered into any agreement, participated in any collusion, or otherwise taken any action in restraint of free competitive bidding in connection with such contract.

          (d) No contract awarded by competitive bidding pursuant to subsection (b) of this section, and subject to the provisions of this section, shall be entered into by any State transportation department or local subdivision of the State without compliance with the provisions of this section, and without the prior concurrence of the Secretary in the award thereof.

          (e) Standardized Contract Clause Concerning Site Conditions.—
          • (1) General rule.— The Secretary shall issue regulations establishing and requiring, for inclusion in each contract entered into with respect to any project approved under section 106 of this title a contract clause, developed in accordance with guidelines established by the Secretary, which equitably addresses each of the following:
            • (A) Site conditions.

            • (B) Suspensions of work ordered by the State (other than a suspension of work caused by the fault of the contractor or by weather).

            • (C) Material changes in the scope of work specified in the contract.

              The guidelines established by the Secretary shall not require arbitration.

          • (2) Limitation on applicability.—
            • (A) State law.— Paragraph (1) shall apply in a State except to the extent that such State adopts or has adopted by statute a formal procedure for the development of a contract clause described in paragraph (1) or adopts or has adopted a statute which does not permit inclusion of such a contract clause.

            • (B) Design-build contracts.— Paragraph (1) shall not apply to any design-build contract approved under subsection (b)(3).

          (f) Selection Process.— A State may procure, under a single contract, the services of a consultant to prepare any environmental impact assessments or analyses required for a project, including environmental impact statements, as well as subsequent engineering and design work on the project if the State conducts a review that assesses the objectivity of the environmental assessment, environmental analysis, or environmental impact statement prior to its submission to the Secretary.

          (g) Temporary Traffic Control Devices.—
          • (1) Issuance of regulations.— The Secretary, after consultation with appropriate Federal and State officials, shall issue regulations establishing the conditions for the appropriate use of, and expenditure of funds for, uniformed law enforcement officers, positive protective measures between workers and motorized traffic, and installation and maintenance of temporary traffic control devices during construction, utility, and maintenance operations.

          • (2) Effects of regulations.— Based on regulations issued under paragraph (1), a State shall—
            • (A) develop separate pay items for the use of uniformed law enforcement officers, positive protective measures between workers and motorized traffic, and installation and maintenance of temporary traffic control devices during construction, utility, and maintenance operations; and

            • (B) incorporate such pay items into contract provisions to be included in each contract entered into by the State with respect to a highway project to ensure compliance with section 109 (e)(2).

          • (3) Limitation.— Nothing in the regulations shall prohibit a State from implementing standards that are more stringent than those required under the regulations.

          • (4) Positive protective measures defined.— In this subsection, the term "positive protective measures" means temporary traffic barriers, crash cushions, and other strategies to avoid traffic accidents in work zones, including full road closures.

            Prevailing rate of wage

            (a) The Secretary shall take such action as may be necessary to insure that all laborers and mechanics employed by contractors or subcontractors on the construction work performed on highway projects on the Federal-aid highways authorized under the highway laws providing for the expenditure of Federal funds upon the Federal-aid systems, shall be paid wages at rates not less than those prevailing on the same type of work on similar construction in the immediate locality as determined by the Secretary of Labor in accordance with sections 3141-3144, 3146, and 3147 of title 40.

            (b) In carrying out the duties of subsection (a) of this section, the Secretary of Labor shall consult with the highway department of the State in which a project on any of the Federal-aid systems is to be performed. After giving due regard to the information thus obtained, he shall make a predetermination of the minimum wages to be paid laborers and mechanics in accordance with the provisions of subsection (a) of this section which shall be set out in each project advertisement for bids and in each bid proposal form and shall be made a part of the contract covering the project.

            (c) The provisions of the section shall not be applicable to employment pursuant to apprenticeship and skill training programs which have been certified by the Secretary of Transportation as promoting equal employment opportunity in connection with Federal-aid highway construction programs.



            Construction

            (a) Construction Work In General.— The construction of any Federal-aid highway or a portion of a Federal-aid highway shall be undertaken by the respective State transportation departments or under their direct supervision. The Secretary shall have the right to conduct such inspections and take such corrective action as the Secretary determines to be appropriate. The construction work and labor in each State shall be performed under the direct supervision of the State transportation department and in accordance with the laws of that State and applicable Federal laws. Construction may be begun as soon as funds are available for expenditure pursuant to subsection (a) of section 118 of this title. After July 1, 1973, the State transportation department shall not erect on any project where actual construction is in progress and visible to highway users any informational signs other than official traffic control devices conforming with standards developed by the Secretary of Transportation.

            (b) Convict Labor and Convict Produced Materials.—
            • (1) Limitation on convict labor.— Convict labor shall not be used in construction of highways or portions of highways located on a Federal-aid system unless it is labor performed by convicts who are on parole, supervised release, or probation.

            • (2) Limitation on convict produced materials.— Materials produced after July 1, 1991, by convict labor may only be used in such construction—
              • (A) if such materials are produced by convicts who are on parole, supervised release, or probation from a prison; or

              • (B) if such materials are produced by convicts in a qualified prison facility and the amount of such materials produced in such facility for use in such construction during any 12-month period does not exceed the amount of such materials produced in such facility for use in such construction during the 12-month period ending July 1, 1987.

            • (3) Qualified prison facility defined.— As used in this subsection, "qualified prison facility" means any prison facility in which convicts, during the 12-month period ending July 1, 1987, produced materials for use in construction of highways or portions of highways located on a Federal-aid system.

            (c) Construction Work in Alaska.—
            • (1) In general.— The Secretary shall ensure that a worker who is employed on a remote project for the construction of a highway or portion of a highway located on a Federal-aid system in the State of Alaska and who is not a domiciled resident of the locality shall receive meals and lodging.

            • (2) Lodging.— The lodging under paragraph (1) shall be in accordance with section 1910.142 of title 29, Code of Federal Regulations (relating to temporary labor camp requirements).

            • (3) Per diem.—
              • (A) In general.— Contractors are encouraged to use commercial facilities and lodges on remote projects, however, when such facilities are not available, per diem in lieu of room and lodging may be paid on remote Federal highway projects at a basic rate of $75.00 per day or part of a day the worker is employed on the project. Where the contractor provides or furnishes room and lodging or pays a per diem, the cost of the amount shall not be considered a part of wages and shall be excluded from the calculation of wages.

              • (B) Secretary of labor.— Such per diem rate shall be adopted by the Secretary of Labor for all applicable remote Federal highway projects in Alaska.

              • (C) Exception.— Per diem shall not be allowed on any of the following remote projects for the construction of a highway or portion of a highway located on a Federal-aid system:
                • (i) West of Livengood on the Elliot Highway.

                • (ii) Mile 0 on the Dalton Highway to the North Slope of Alaska; north of Mile 20 on the Taylor Highway.

                • (iii) East of Chicken on the Top of the World Highway and south of Tetlin Junction to the Alaska Canadian border.

            • (4) Definitions.— In this subsection, the following definitions apply:
              • (A) Remote.— The term "remote", as used with respect to a project, means that the project is 65 road miles or more from the international airport in Fairbanks, Anchorage, or Juneau, Alaska, as the case may be, or is inaccessible by road in a 2-wheel drive vehicle.

              • (B) Resident.— The term "resident", as used with respect to a project, means a person living within 65 road miles of the midpoint of the project for at least 12 consecutive months prior to the award of the project.