1. U.S. Code
  2. title 23
  3. chapter 3
  4. § 308

Collapse to view only § 308. Cooperation with Federal and State agencies and foreign countries

§ 301. Freedom from tolls

Except as provided in section 129 of this title with respect to certain toll bridges and toll tunnels, all highways constructed under the provisions of this title shall be free from tolls of all kinds.

(Pub. L. 85–767, Aug. 27, 1958, 72 Stat. 912.)

CITE AS: 23 USC 301

§ 302. State transportation department
(a) Any State desiring to avail itself of the provisions of this title shall have a State transportation department which shall have adequate powers, and be suitably equipped and organized to discharge to the satisfaction of the Secretary the duties required by this title. In meeting the provisions of this subsection, a State may engage, to the extent necessary or desirable, the services of private engineering firms.
(b)Effect of Compliance.—Compliance with subsection (a) shall have no effect on the eligibility of costs.
(Pub. L. 85–767, Aug. 27, 1958, 72 Stat. 912; Pub. L. 89–574, § 11, Sept. 13, 1966, 80 Stat. 770; Pub. L. 105–178, title I, § 1212(a)(1), (2)(A)(i), (B)(ii), June 9, 1998, 112 Stat. 193.)

CITE AS: 23 USC 302

[§ 303. Repealed. Pub. L. 112–141, div. A, title I, § 1519(b)(1)(A), July 6, 2012, 126 Stat. 575]

CITE AS: 23 USC 303

§ 304. Participation by small business enterprises

It is declared to be in the national interest to encourage and develop the actual and potential capacity of small business and to utilize this important segment of our economy to the fullest practicable extent in construction of Federal-aid highways, including the Interstate System. In order to carry out that intent and encourage full and free competition, the Secretary should assist, insofar as feasible, small business enterprises in obtaining contracts in connection with the prosecution of the highway program.

(Pub. L. 85–767, Aug. 27, 1958, 72 Stat. 913; Pub. L. 112–141, div. A, title I, § 1104(c)(5), July 6, 2012, 126 Stat. 427.)

CITE AS: 23 USC 304

§ 305. Archeological and paleontological salvage

(Pub. L. 85–767, Aug. 27, 1958, 72 Stat. 913; Pub. L. 86–657, § 8(e), July 14, 1960, 74 Stat. 525.)

CITE AS: 23 USC 305

§ 306. Mapping
(a)In General.—In carrying out the provisions of this title, the Secretary shall, wherever practicable, authorize the use of photogrammetric methods in mapping, and the utilization of commercial enterprise for such services.
(b)Guidance.—The Secretary shall issue guidance to encourage States to utilize, to the maximum extent practicable, private sector sources for surveying and mapping services for projects under this title. In carrying out this subsection, the Secretary shall recommend appropriate roles for State government and private mapping and surveying activities, including—
(1) preparation of standards and specifications;
(2) research in surveying and mapping instrumentation and procedures and technology transfer to the private sector;
(3) providing technical guidance, coordination, and administration of State surveying and mapping activities; and
(4) recommending methods for increasing the use by the States of private sector sources for surveying and mapping activities.
(c)Implementation.—The Secretary shall develop a process for the oversight and monitoring, on an annual basis, of the compliance of each State with the guidance issued under subsection (b).
(Pub. L. 85–767, Aug. 27, 1958, 72 Stat. 913; Pub. L. 104–59, title III, § 321, Nov. 28, 1995, 109 Stat. 590; Pub. L. 112–141, div. A, title I, § 1517(a), July 6, 2012, 126 Stat. 574.)

CITE AS: 23 USC 306

[§ 307. Repealed. Pub. L. 105–178, title V, § 5119(b), June 9, 1998, 112 Stat. 452]

CITE AS: 23 USC 307

§ 308. Cooperation with Federal and State agencies and foreign countries
(a)Authorized Activities.—
(1)In general.—The Secretary may perform, by contract or otherwise, authorized engineering or other services in connection with the survey, construction, maintenance, or improvement of highways for other Federal agencies, cooperating foreign countries, and State cooperating agencies.
(2)Inclusions.—Services authorized under paragraph (1) may include activities authorized under section 214 of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970.
(3)Reimbursement.—Reimbursement for services carried out under this subsection (including depreciation on engineering and road-building equipment) shall be credited to the applicable appropriation.
(4)Alternative contracting methods.—
(A)In general.—Notwithstanding any other provision of law (including the Federal Acquisition Regulation), in performing services under paragraph (1), the Secretary may use any contracting method available to a State under this title.
(B)Methods described.—The contracting methods referred to in subparagraph (A) shall include, at a minimum—
(i) project bundling;
(ii) bridge bundling;
(iii) design-build contracting;
(iv) 2-phase contracting;
(v) long-term concession agreements; and
(vi) any method tested, or that could be tested, under an experimental program relating to contracting methods carried out by the Secretary.
(b) Appropriations for the work of the Federal Highway Administration shall be available for expenses of warehouse maintenance and the procurement, care, and handling of supplies, materials, and equipment for distribution to projects under the supervision of the Federal Highway Administration, or for sale or distribution to other Government agencies, cooperating foreign countries, and State cooperating agencies, and the cost of such supplies and materials or the value of such equipment, including the cost of transportation and handling, may be reimbursed to current applicable appropriations.
(Pub. L. 85–767, Aug. 27, 1958, 72 Stat. 914; Pub. L. 93–87, title I, § 152(5), Aug. 13, 1973, 87 Stat. 276; Pub. L. 112–141, div. A, title I, § 1521(f), July 6, 2012, 126 Stat. 579; Pub. L. 117–58, div. A, title I, § 11305(b), Nov. 15, 2021, 135 Stat. 532.)

CITE AS: 23 USC 308

[§ 309. Repealed. Pub. L. 112–141, div. A, title I, § 1519(b)(1)(A), July 6, 2012, 126 Stat. 575]

CITE AS: 23 USC 309

§ 310. Civil defense

In order to assure that adequate consideration is given to civil defense aspects in the planning and construction of highways constructed or reconstructed with the aid of Federal funds, the Secretary of Transportation is authorized and directed to consult, from time to time, with the Federal Civil Defense Administrator relative to the civil defense aspects of highways so constructed or reconstructed.

(Pub. L. 85–767, Aug. 27, 1958, 72 Stat. 914; Pub. L. 93–87, title I, § 152(3), Aug. 13, 1973, 87 Stat. 276.)

CITE AS: 23 USC 310

§ 311. Highway improvements strategically important to the national defense

Funds made available under subsection (a) of section 104 of this title may be used to pay the entire engineering costs of the surveys, plans, specifications, estimates, and supervision of construction of projects for such urgent improvements of highways strategically important from the standpoint of the national defense as may be undertaken on the order of the Secretary and as the result of request of the Secretary of Defense or such other official as the President may designate. With the consent of a State, funds made available under subsection (b) of section 104 of this title may be used to the extent deemed necessary and advisable by the Secretary to carry out the provisions of this section.

(Pub. L. 85–767, Aug. 27, 1958, 72 Stat. 915.)

CITE AS: 23 USC 311

§ 312. Detail of Army, Navy, and Air Force officers

The Secretary of Defense, upon request of the Secretary, is authorized to make temporary details to the Federal Highway Administration of officers of the Army, the Navy, and the Air Force, without additional compensation, for technical advice and for consultation regarding highway needs for the national defense. Travel and subsistence expenses of officers so detailed shall be paid from appropriations available to the Department of Transportation on the same basis as authorized by law and by regulations of the Department of Defense for such officers.

(Pub. L. 85–767, Aug. 27, 1958, 72 Stat. 915; Pub. L. 93–87, title I, § 152(5), (6), Aug. 13, 1973, 87 Stat. 276.)

CITE AS: 23 USC 312

§ 313. Buy America
(a) Notwithstanding any other provision of law, the Secretary of Transportation shall not obligate any funds authorized to be appropriated to carry out the Surface Transportation Assistance Act of 1982 (96 Stat. 2097) or this title and administered by the Department of Transportation, unless steel, iron, and manufactured products used in such project are produced in the United States.
(b) The provisions of subsection (a) of this section shall not apply where the Secretary finds—
(1) that their application would be inconsistent with the public interest;
(2) that such materials and products are not produced in the United States in sufficient and reasonably available quantities and of a satisfactory quality; or
(3) that inclusion of domestic material will increase the cost of the overall project contract by more than 25 percent.
(c) For purposes of this section, in calculating components’ costs, labor costs involved in final assembly shall not be included in the calculation.
(d) The Secretary of Transportation shall not impose any limitation or condition on assistance provided under the Surface Transportation Assistance Act of 1982 (96 Stat. 2097) or this title that restricts any State from imposing more stringent requirements than this section on the use of articles, materials, and supplies mined, produced, or manufactured in foreign countries in projects carried out with such assistance or restricts any recipient of such assistance from complying with such State imposed requirements.
(e)Intentional Violations.—If it has been determined by a court or Federal agency that any person intentionally—
(1) affixed a label bearing a “Made in America” inscription, or any inscription with the same meaning, to any product used in projects to which this section applies, sold in or shipped to the United States that was not made in the United States; or
(2) represented that any product used in projects to which this section applies, sold in or shipped to the United States that was not produced in the United States, was produced in the United States;
that person shall be ineligible to receive any contract or subcontract made with funds authorized under the Intermodal Surface Transportation Efficiency Act of 1991 pursuant to the debarment, suspension, and ineligibility procedures in subpart 9.4 of chapter 1 of title 48, Code of Federal Regulations.
(f)Limitation on Applicability of Waivers to Products Produced in Certain Foreign Countries.—If the Secretary, in consultation with the United States Trade Representative, determines that—
(1) a foreign country is a party to an agreement with the United States and pursuant to that agreement the head of an agency of the United States has waived the requirements of this section, and
(2) the foreign country has violated the terms of the agreement by discriminating against products covered by this section that are produced in the United States and are covered by the agreement,
the provisions of subsection (b) shall not apply to products produced in that foreign country.
(g)Waivers.—
(1)In general.—Not less than 15 days before issuing a waiver under this section, the Secretary shall provide to the public—
(A) notice of the proposed waiver;
(B) an opportunity for comment on the proposed waiver; and
(C) the reasons for the proposed waiver.
(2)Report.—Not less frequently than annually, the Secretary shall submit to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives a report on the waivers provided under this section.
(h)Application to Highway Programs.—The requirements under this section shall apply to all contracts eligible for assistance under this chapter for a project carried out within the scope of the applicable finding, determination, or decision under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), regardless of the funding source of such contracts, if at least 1 contract for the project is funded with amounts made available to carry out this title.
(Added and amended Pub. L. 109–59, title I, § 1903(a), (c), Aug. 10, 2005, 119 Stat. 1464, 1465; Pub. L. 112–141, div. A, title I, § 1518, July 6, 2012, 126 Stat. 574; Pub. L. 117–58, div. A, title I, § 11513, Nov. 15, 2021, 135 Stat. 595.)

CITE AS: 23 USC 313

§ 314. Relief of employees in hazardous work

The Secretary is authorized in an emergency to use appropriations to the Department of Transportation for carrying out the provisions of this title for medical supplies, services, and other assistance necessary for the immediate relief of employees of the Federal Highway Administration engaged in hazardous work.

(Pub. L. 85–767, Aug. 27, 1958, 72 Stat. 915; Pub. L. 93–87, title I, § 152(5), (6), Aug. 13, 1973, 87 Stat. 276.)

CITE AS: 23 USC 314

§ 315. Rules, regulations, and recommendations

Except as provided in sections 202(a)(5), 203(a)(3), and 205(a) of this title, the Secretary is authorized to prescribe and promulgate all needful rules and regulations for the carrying out of the provisions of this title. The Secretary may make such recommendations to the Congress and State transportation departments as he deems necessary for preserving and protecting the highways and insuring the safety of traffic thereon.

(Pub. L. 85–767, Aug. 27, 1958, 72 Stat. 915; Pub. L. 100–17, title I, § 133(b)(18), Apr. 2, 1987, 101 Stat. 172; Pub. L. 105–178, title I, § 1212(a)(2)(A)(ii), June 9, 1998, 112 Stat. 193; Pub. L. 112–141, div. A, title I, § 1119(c)(3), July 6, 2012, 126 Stat. 492.)

CITE AS: 23 USC 315

§ 316. Consent by United States to conveyance of property

For the purposes of this title the consent of the United States is given to any railroad or canal company to convey to the State transportation department of any State, or its nominee, any part of its right-of-way or other property in that State acquired by grant from the United States.

(Pub. L. 85–767, Aug. 27, 1958, 72 Stat. 915; Pub. L. 105–178, title I, § 1212(a)(2)(A)(i), June 9, 1998, 112 Stat. 193.)

CITE AS: 23 USC 316

§ 317. Appropriation for highway purposes of lands or interests in lands owned by the United States
(a) If the Secretary determines that any part of the lands or interests in lands owned by the United States is reasonably necessary for the right-of-way of any highway, or as a source of materials for the construction or maintenance of any such highway adjacent to such lands or interests in lands, the Secretary shall file with the Secretary of the Department supervising the administration of such lands or interests in lands a map showing the portion of such lands or interests in lands which it is desired to appropriate.
(b) If within a period of four months after such filing, the Secretary of such Department shall not have certified to the Secretary that the proposed appropriation of such land or material is contrary to the public interest or inconsistent with the purposes for which such land or materials have been reserved, or shall have agreed to the appropriation and transfer under conditions which he deems necessary for the adequate protection and utilization of the reserve, then such land and materials may be appropriated and transferred to the State transportation department, or its nominee, for such purposes and subject to the conditions so specified.
(c) If at any time the need for any such lands or materials for such purposes shall no longer exist, notice of the fact shall be given by the State transportation department to the Secretary and such lands or materials shall immediately revert to the control of the Secretary of the Department from which they had been appropriated.
(d) The provisions of this section shall apply only to projects constructed on a Federal-aid highway or under the provisions of chapter 2 of this title.
(Pub. L. 85–767, Aug. 27, 1958, 72 Stat. 916;

CITE AS: 23 USC 317

§ 318. Highway relocation due to airport

Federal highway funds shall not be used for the reconstruction or relocation of any highway giving access to an airport constructed or extended after December 20, 1944, or for the reconstruction or relocation of any highway which has been or may be closed or the usefulness of which has been may be impaired by the location or construction of any airport constructed or extended after December 20, 1944, unless, prior to such construction or extension, as the case may be, the State transportation department and the Secretary have concurred with the officials in charge of the airport that the location of such airport or extension thereof and the consequent reconstruction or relocation of the highway are in the public interest.

(Pub. L. 85–767, Aug. 27, 1958, 72 Stat. 916; Pub. L. 105–178, title I, § 1212(a)(2)(A)(i), June 9, 1998, 112 Stat. 193.)

CITE AS: 23 USC 318

§ 319. Landscaping and scenic enhancement
(a)Landscape and Roadside Development.—The Secretary may approve as a part of the construction of Federal-aid highways the costs of landscape and roadside development, including acquisition and development of publicly owned and controlled rest and recreation areas and sanitary and other facilities reasonably necessary to accommodate the traveling public, and for acquisition of interests in and improvement of strips of land necessary for the restoration, preservation, and enhancement of scenic beauty (including the enhancement of habitat and forage for pollinators) adjacent to such highways.
(b)Planting of Wildflowers.—
(1)General rule.—The Secretary shall require the planting of native wildflower seeds or seedlings, or both, as part of any landscaping project under this section. At least ¼ of 1 percent of the funds expended for such landscaping project shall be used for such plantings.
(2)Waiver.—The requirements of this subsection may be waived by the Secretary if a State certifies that native wildflowers or seedlings cannot be grown satisfactorily or planting areas are limited or otherwise used for agricultural purposes.
(3)Gifts.—Nothing in this subsection shall be construed to prohibit the acceptance of native wildflower seeds or seedlings donated by civic organizations or other organizations and individuals to be used in landscaping projects.
(c)Encouragement of Pollinator Habitat and Forage Development and Protection on Transportation Rights-of-way.—In carrying out any program administered by the Secretary under this title, the Secretary shall, in conjunction with willing States, as appropriate—
(1) encourage integrated vegetation management practices on roadsides and other transportation rights-of-way, including reduced mowing; and
(2) encourage the development of habitat and forage for Monarch butterflies, other native pollinators, and honey bees through plantings of native forbs and grasses, including noninvasive, native milkweed species that can serve as migratory way stations for butterflies and facilitate migrations of other pollinators.
(Pub. L. 85–767, Aug. 27, 1958, 72 Stat. 916; Pub. L. 89–285, title III, § 301(a), Oct. 22, 1965, 79 Stat. 1032; Pub. L. 89–574, § 8(b), Sept. 13, 1966, 80 Stat. 768; Pub. L. 90–495, § 6(f), Aug. 23, 1968, 82 Stat. 818; Pub. L. 94–280, title I, § 136(a), May 5, 1976, 90 Stat. 442; Pub. L. 100–17, title I, § 130, Apr. 2, 1987, 101 Stat. 169; Pub. L. 114–94, div. A, title I, § 1415(a), Dec. 4, 2015, 129 Stat. 1421.)

CITE AS: 23 USC 319

§ 320. Bridges on Federal dams
(a) Each executive department, independent establishment, office, board, bureau, commission, authority, administration, corporation wholly owned or controlled by the United States, or other agency of the Government of the United States, hereinafter collectively and individually referred to as “agency”, which on or after July 29, 1946, has jurisdiction over and custody of any dam constructed or to be constructed and owned by or for the United States, is authorized, with any funds available to it, to design and construct any such dam in such manner that it will constitute and serve as a suitable and adequate foundation to support a public highway bridge upon and across such dam, and to design and construct upon the foundation thus provided a public highway bridge upon and across such dam. The highway department of the State in which such dam shall be located, jointly with the Secretary, shall first determine and certify to such agency that such bridge is economically desirable and needed as a link in the State or Federal-aid highway systems, and shall request such agency to design and construct such dam so that it will serve as a suitable and adequate foundation for a public highway bridge and to design and construct such public highway bridge upon and across such dam, and shall agree to reimburse such agency pursuant to subsection (d) of this section for any additional costs which it may be required to incur because of the design and construction of such dam so that it will serve as a foundation for a public highway bridge and for expenditures which it may find it necessary to make in designing and constructing such public highway bridge upon and across such dam. In no case shall the design and construction of a bridge upon and across such dam be undertaken hereunder except by the agency having jurisdiction over and custody of the dam, acting directly or through contractors employed by it, and after such agency shall determine that it will be structurally feasible and will not interfere with the proper functioning and operation of the dam.
(b) Construction of any bridge upon and across any dam pursuant to this section shall not be commenced unless and until the State in which such bridge is to be located, or the appropriate subdivision of such State, shall enter into an agreement with such agency and with the Secretary to construct, or cause to be constructed, with or without the aid of Federal funds, the approach roads necessary to connect such bridge with existing public highways and to maintain, or cause to be maintained, such approach roads from and after their completion. Such agreement may also provide for the design and construction of such bridge upon and across the dam by such agency of the United States and for reimbursing such agency the costs incurred by it in the design and construction of the bridge as provided in subsection (d) of this section. Any such agency is hereby authorized to convey to the State, or to the appropriate subdivision thereof, without costs, such easements and rights-of-way in its custody or over lands of the United States in its custody and control as may be necessary, convenient, or proper for the location, construction, and maintenance of the approach roads referred to in this section including such roadside parks or recreational areas of limited size as may be deemed necessary for the accommodation of the traveling public. Any bridge constructed pursuant to this section upon and across a dam in the custody and jurisdiction of any agency of the United States, including such portion thereof, if any, as may extend beyond the physical limits of the dam, shall constitute and remain a part of said dam and be maintained by the agency. Any such agency may enter into any such contracts and agreements with the State or its subdivisions respecting public use of any bridge so located and constructed as may be deemed appropriate, but no such bridge shall be closed to public use by the agency except in cases of emergency or when deemed necessary in the interest of national security.
(c) All costs and expenses incurred and expenditures made by any agency in the exercise of the powers and authority conferred by this section (but not including any costs, expenses, or expenditures which would have been required in any event to satisfy a legal road or bridge relocation obligation or to meet operating or other agency needs) shall be recorded and kept separate and apart from the other costs, expenses, and expenditures of such agency, and no portion thereof shall be charged or allocated to flood control, navigation, irrigation, fertilizer production, the national defense, the development of power, or other program, purpose, or function of such agency.
(d) Not to exceed $65,000,000 of any money heretofore or hereafter appropriated for expenditure in accordance with the provisions of this title or prior Acts shall be available for expenditure by the Secretary in accordance with the provisions of this section, as an emergency fund, to reimburse any agency for any additional costs or expenditures which it may be required to incur because of the design and construction of any such dam so that it will constitute and serve as a foundation for a public highway bridge upon and across such dam and to reimburse any such agency for any costs, expenses, or expenditures which it may be required to make in designing and constructing any such bridge upon and across a dam in accordance with the provisions of this section, except such costs, expenses, or expenditures as would have been required of such agency in any event to satisfy a legal obligation to relocate a highway or bridge or to meet operating or other agency needs, and there is authorized to be appropriated any sum or sums necessary to reimburse the funds so expended by the Secretary from time to time under the authority of this section. Of each bridge constructed upon and across a dam under the provisions of this section, there may be financed wholly with Federal funds that portion thereof which is located within the physical limits of the masonry structure, or structures, of the dam, and the Secretary shall in his sole discretion determine what additional portion of the bridge, if any, may be so financed, such determination to be final and conclusive. The remainder of the bridge, and any necessary related approach roads, shall be financed by the State or its appropriate subdivision with or without the aid of Federal funds; but said portion of the bridge so financed by the State or its subdivisions, including such portion thereof, if any, as may extend beyond the physical limits of the dam, shall nevertheless be designed and constructed solely by the agency having custody and jurisdiction of the dam as provided in subsection (a) of this section.
(e) In making, reviewing, or approving the design of any bridge or approach structure to be constructed under this section, the agency shall, in matters relating to roadway design, loadings, clearances and widths, and traffic safeguards, give full consideration to and be guided by the standards and advice of the Secretary.
(f) The authority conferred by this section shall be in addition to and not in limitation of authority conferred upon any agency by any other law, and nothing in this section contained shall affect or be deemed to relate to any bridge, approach structure, or highway constructed or to be constructed by any such agency in furtherance of its lawful purposes and requirements or to satisfy a legal obligation incurred independently of this section.
(Pub. L. 85–767, Aug. 27, 1958, 72 Stat. 917; Pub. L. 86–342, title I, § 108, Sept. 21, 1959, 73 Stat. 613; Pub. L. 88–423, § 4(c), Aug. 13, 1964, 78 Stat. 398; Pub. L. 91–605, title I, § 116(a), Dec. 31, 1970, 84 Stat. 1724; Pub. L. 93–87, title I, § 128(a), Aug. 13, 1973, 87 Stat. 265; Pub. L. 93–643, § 123(a), Jan. 4, 1975, 88 Stat. 2290; Pub. L. 94–280, title I, § 137(a), May 5, 1976, 90 Stat. 443; Pub. L. 95–599, title I, § 128(a), Nov. 6, 1978, 92 Stat. 2707.)

CITE AS: 23 USC 320

§ 321. Signs identifying funding sources

If a State has a practice of erecting on projects under actual construction without Federal-aid highway assistance signs which indicate the source or sources of any funds used to carry out such projects, such State shall erect on all projects under actual construction with any funds made available out of the Highway Trust Fund (other than the Mass Transit Account) signs which are visible to highway users and which indicate each governmental source of funds being used to carry out such federally assisted projects and the amount of funds being made available by each such source.

(Added Pub. L. 109–59, title I, § 1901(a), Aug. 10, 2005, 119 Stat. 1464.)

CITE AS: 23 USC 321

§ 322. Magnetic levitation transportation technology deployment program
(a)Definitions.—In this section, the following definitions apply:
(1)Eligible project costs.—The term “eligible project costs”—
(A) means the capital cost of the fixed guideway infrastructure of a MAGLEV project, including land, piers, guideways, propulsion equipment and other components attached to guideways, power distribution facilities (including substations), control and communications facilities, access roads, and storage, repair, and maintenance facilities, but not including costs incurred for a new station; and
(B) includes the costs of preconstruction planning activities.
(2)Full project costs.—The term “full project costs” means the total capital costs of a MAGLEV project, including eligible project costs and the costs of stations, vehicles, and equipment.
(3) MAGLEV.—The term “MAGLEV” means transportation systems employing magnetic levitation that would be capable of safe use by the public at a speed in excess of 240 miles per hour.
(4)Partnership potential.—The term “partnership potential” has the meaning given the term in the commercial feasibility study of high-speed ground transportation conducted under section 1036 of the Intermodal Surface Transportation Efficiency Act of 1991 (105 Stat. 1978).
(b)Financial Assistance.—
(1)In general.—The Secretary shall make available financial assistance to pay the Federal share of full project costs of eligible projects selected under this section. Financial assistance made available under this section and projects assisted with the assistance shall be subject to section 5333(a) of title 49, United States Code.
(2)Federal share.—The Federal share of full project costs under paragraph (1) shall be not more than ⅔.
(3)Use of assistance.—Financial assistance provided under paragraph (1) shall be used only to pay eligible project costs of projects selected under this section.
(c)Solicitation of Applications for Assistance.—Not later than 180 days after the date of enactment of this subsection, the Secretary shall solicit applications from States, or authorities designated by 1 or more States, for financial assistance authorized by subsection (b) for planning, design, and construction of eligible MAGLEV projects.
(d)Project Eligibility.—To be eligible to receive financial assistance under subsection (b), a project shall—
(1) involve a segment or segments of a high-speed ground transportation corridor that exhibit partnership potential;
(2) require an amount of Federal funds for project financing that will not exceed the sum of—
(A) the amounts made available under subsection (h)(1); and
(B) the amounts made available by States under subsection (h)(3);
(3) result in an operating transportation facility that provides a revenue producing service;
(4) be undertaken through a public and private partnership, with at least ⅓ of full project costs paid using non-Federal funds;
(5) satisfy applicable statewide and metropolitan planning requirements;
(6) be approved by the Secretary based on an application submitted to the Secretary by a State or authority designated by 1 or more States;
(7) to the extent that non-United States MAGLEV technology is used within the United States, be carried out as a technology transfer project; and
(8) be carried out using materials at least 70 percent of which are manufactured in the United States.
(e)Project Selection Criteria.—Prior to soliciting applications, the Secretary shall establish criteria for selecting which eligible projects under subsection (d) will receive financial assistance under subsection (b). The criteria shall include the extent to which—
(1) a project is nationally significant, including the extent to which the project will demonstrate the feasibility of deployment of MAGLEV technology throughout the United States;
(2) timely implementation of the project will reduce congestion in other modes of transportation and reduce the need for additional highway or airport construction;
(3) States, regions, and localities financially contribute to the project;
(4) implementation of the project will create new jobs in traditional and emerging industries;
(5) the project will augment MAGLEV networks identified as having partnership potential;
(6) financial assistance would foster public and private partnerships for infrastructure development and attract private debt or equity investment;
(7) financial assistance would foster the timely implementation of a project; and
(8) life-cycle costs in design and engineering are considered and enhanced.
(f)Project Selection.—
(1)Preconstruction planning activities.—Not later than 90 days after a deadline established by the Secretary for the receipt of applications, the Secretary shall evaluate the eligible projects in accordance with the selection criteria and select 1 or more eligible projects to receive financial assistance for preconstruction planning activities, including—
(A) preparation of such feasibility studies, major investment studies, and environmental impact statements and assessments as are required under State law;
(B) pricing of the final design, engineering, and construction activities proposed to be assisted under paragraph (2); and
(C) such other activities as are necessary to provide the Secretary with sufficient information to evaluate whether a project should receive financial assistance for final design, engineering, and construction activities under paragraph (2).
(2)Final design, engineering, and construction activities.—After completion of preconstruction planning activities for all projects assisted under paragraph (1), the Secretary shall select 1 of the projects to receive financial assistance for final design, engineering, and construction activities.
(g)Joint Ventures.—A project undertaken by a joint venture of United States and non-United States persons (including a project involving the deployment of non-United States MAGLEV technology in the United States) shall be eligible for financial assistance under this section if the project is eligible under subsection (d) and selected under subsection (f).
(h)Funding.—
(1)In general.—
(A)Contract authority; authorization of appropriations.—
(i)In general.—There is authorized to be appropriated from the Highway Trust Fund (other than the Mass Transit Account) to carry out this section $15,000,000 for fiscal year 1999, $20,000,000 for fiscal year 2000, and $25,000,000 for fiscal year 2001.
(ii)Contract authority.—Funds authorized by this subparagraph shall be available for obligation in the same manner as if the funds were apportioned under chapter 1, except that—(I) the Federal share of the cost of a project carried out under this section shall be determined in accordance with subsection (b); and(II) the availability of the funds shall be determined in accordance with paragraph (2).
(B)Noncontract authority authorization of appropriations.—
(i)In general.—There are authorized to be appropriated from the Highway Trust Fund (other than the Mass Transit Account) to carry out this section (other than subsection (i)) $200,000,000 for each of fiscal years 2000 and 2001, $250,000,000 for fiscal year 2002, and $300,000,000 for fiscal year 2003.
(ii)Availability.—Notwithstanding section 118(a), funds made available under clause (i) shall not be available in advance of an annual appropriation.
(2)Availability of funds.—Funds made available under paragraph (1) shall remain available until expended.
(3)Other federal funds.—Notwithstanding any other provision of law, funds made available to a State to carry out the surface transportation block grant program under section 133 and the congestion mitigation and air quality improvement program under section 149 may be used by the State to pay a portion of the full project costs of an eligible project selected under this section, without requirement for non-Federal funds.
(4)Other assistance.—Notwithstanding any other provision of law, an eligible project selected under this section shall be eligible for other forms of financial assistance provided under this title and the Transportation Equity Act for the 21st Century, including loans, loan guarantees, and lines of credit.
(i)Low-Speed Project.—
(1)In general.—Notwithstanding any other provision of this section, of the funds made available by subsection (h)(1)(A) to carry out this section, $5,000,000 shall be made available to the Secretary to make grants for the research and development of low-speed superconductivity magnetic levitation technology for public transportation purposes in urban areas to demonstrate energy efficiency, congestion mitigation, and safety benefits.
(2)Noncontract authority authorization of appropriations.—
(A)In general.—There are authorized to be appropriated from the Highway Trust Fund (other than the Mass Transit Account) to carry out this subsection such sums as are necessary for each of fiscal years 2000 through 2003.
(B)Availability.—Notwithstanding section 118(a), funds made available under subparagraph (A)—
(i) shall not be available in advance of an annual appropriation; and
(ii) shall remain available until expended.
(Added and amended Pub. L. 105–178, title I, § 1218(a), (c), June 9, 1998, 112 Stat. 216; Pub. L. 105–206, title IX, § 9003(i), July 22, 1998, 112 Stat. 841; Pub. L. 114–94, div. A, title I, § 1109(c)(3), Dec. 4, 2015, 129 Stat. 1343.)

CITE AS: 23 USC 322

§ 323. Donations and credits
(a)Donations of Property Being Acquired.—Nothing in this title, or in any other provision of law, shall be construed to prevent a person whose real property is being acquired in connection with a project under this title, after he has been fully informed of his right to receive just compensation for the acquisition of his property, from making a gift or donation of such property, or any part thereof, or of any of the compensation paid therefor, to a Federal agency, a State or a State agency, or a political subdivision of a State, as said person shall determine.
(b)Credit for Acquired Lands.—
(1)In general.—Notwithstanding any other provision of this title, the State share of the cost of a project with respect to which Federal assistance is provided from the Highway Trust Fund (other than the Mass Transit Account) may be credited in an amount equal to the fair market value of any land that—
(A) is lawfully obtained by the State or a unit of local government in the State;
(B) is incorporated into the project;
(C) is not land described in section 138; and
(D) the Secretary determines will not influence the environmental assessment of the project, including—
(i) the decision as to the need to construct the project;
(ii) the consideration of alternatives; and
(iii) the selection of a specific location.
(2)Establishment of fair market value.—The fair market value of land incorporated into a project and credited under paragraph (1) shall be established in the manner determined by the Secretary, except that—
(A) the fair market value shall not include any increase or decrease in the value of donated property caused by the project; and
(B) the fair market value of donated land shall be established as of the earlier of—
(i) the date on which the donation becomes effective; or
(ii) the date on which equitable title to the land vests in the State.
(3)Limitation on applicability.—This subsection shall not apply to donations made by an agency of the Federal Government.
(4)Limitation on amount of credit.—The credit received by a State pursuant to this subsection may not exceed the State’s matching share for the project.
(c)Credit for Donations of Funds, Materials, or Services.—Nothing in this title or any other law shall prevent a person from offering to donate funds, materials, or services, or a local government from offering to donate funds, materials, or services performed by local government employees, in connection with a project eligible for assistance under this title. In the case of such a project with respect to which the Federal Government and the State share in paying the cost, any donated funds, or the fair market value of any donated materials or services, that are accepted and incorporated into the project by the State transportation department shall be credited against the State share.
(d)Procedures.—A gift or donation in accordance with subsection (a) may be made at any time during the development of a project. Any document executed as part of such donation prior to the approval of an environmental document prepared pursuant to the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) shall clearly indicate that—
(1) all alternatives to a proposed alignment will be studied and considered pursuant to such Act;
(2) acquisition of property under this section shall not influence the environmental assessment of a project including the decision relative to the need to construct the project or the selection of a specific location; and
(3) any property acquired by gift or donation shall be revested in the grantor or successors in interest if such property is not required for the alignment chosen after public hearings, if required, and completion of the environmental document.
(Added Pub. L. 93–87, title I, § 145(a), Aug. 13, 1973, 87 Stat. 273; amended Pub. L. 93–643, § 112, Jan. 4, 1975, 88 Stat. 2285; Pub. L. 100–17, title I, § 146(a), Apr. 2, 1987, 101 Stat. 179; Pub. L. 104–59, title III, § 322, Nov. 28, 1995, 109 Stat. 591; Pub. L. 105–178, title I, §§ 1212(a)(2)(A)(i), 1301(b)–(d)(1), June 9, 1998, 112 Stat. 193, 225, 226; Pub. L. 109–59, title I, § 1902, Aug. 10, 2005, 119 Stat. 1464; Pub. L. 117–58, div. A, title I, § 11525(q), Nov. 15, 2021, 135 Stat. 608.)

CITE AS: 23 USC 323

§ 324. Prohibition of discrimination on the basis of sex

No person shall on the ground of sex be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal assistance under this title or carried on under this title. This provision will be enforced through agency provisions and rules similar to those already established, with respect to racial and other discrimination, under title VI of the Civil Rights Act of 1964. However, this remedy is not exclusive and will not prejudice or cut off any other legal remedies available to a discrim­inatee.

CITE AS: 23 USC 324

[§ 325. Repealed. Pub. L. 117–58, div. A, title I, § 11525(r), Nov. 15, 2021, 135 Stat. 608]

CITE AS: 23 USC 325

§ 326. State assumption of responsibility for categorical exclusions
(a)Categorical Exclusion Determinations.—
(1)In general.—The Secretary may assign, and a State may assume, responsibility for determining whether certain designated activities are included within classes of action identified in regulation by the Secretary that are categorically excluded from requirements for environmental assessments or environmental impact statements pursuant to regulations promulgated by the Council on Environmental Quality under part 1500 of title 40, Code of Federal Regulations (as in effect on October 1, 2003).
(2)Scope of authority.—A determination described in paragraph (1) shall be made by a State in accordance with criteria established by the Secretary and only for types of activities specifically designated by the Secretary.
(3)Criteria.—The criteria under paragraph (2) shall include provisions for public availability of information consistent with section 552 of title 5 and the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).
(4)Preservation of flexibility.—The Secretary shall not require a State, as a condition of assuming responsibility under this section, to forego project delivery methods that are otherwise permissible for highway projects.
(b)Other Applicable Federal Laws.—
(1)In general.—If a State assumes responsibility under subsection (a), the Secretary may also assign and the State may assume all or part of the responsibilities of the Secretary for environmental review, consultation, or other related actions required under any Federal law applicable to activities that are classified by the Secretary as categorical exclusions, with the exception of government-to-government consultation with Indian tribes, subject to the same procedural and substantive requirements as would be required if that responsibility were carried out by the Secretary.
(2)Sole responsibility.—A State that assumes responsibility under paragraph (1) with respect to a Federal law shall be solely responsible and solely liable for complying with and carrying out that law, and the Secretary shall have no such responsibility or liability.
(c)Memoranda of Understanding.—
(1)In general.—The Secretary and the State, after providing public notice and opportunity for comment, shall enter into a memorandum of understanding setting forth the responsibilities to be assigned under this section and the terms and conditions under which the assignments are made, including establishment of the circumstances under which the Secretary would reassume responsibility for categorical exclusion determinations.
(2)Assistance to states.—On request of a Governor of a State, the Secretary shall provide to the State technical assistance, training, or other support relating to—
(A) assuming responsibility under subsection (a);
(B) developing a memorandum of understanding under this subsection; or
(C) addressing a responsibility in need of corrective action under subsection (d)(1)(B).
(3)Term.—A memorandum of understanding—
(A) except as provided under subparagraph (C), shall have a term of not more than 3 years;
(B) shall be renewable; and
(C) shall have a term of 5 years, in the case of a State that has assumed the responsibility for categorical exclusions under this section for not fewer than 10 years.
(4)Acceptance of jurisdiction.—In a memorandum of understanding, the State shall consent to accept the jurisdiction of the Federal courts for the compliance, discharge, and enforcement of any responsibility of the Secretary that the State assumes.
(5)Monitoring.—The Secretary shall—
(A) monitor compliance by the State with the memorandum of understanding and the provision by the State of financial resources to carry out the memorandum of understanding; and
(B) take into account the performance by the State when considering renewal of the memorandum of understanding.
(d)Termination.—
(1)Termination by secretary.—The Secretary may terminate the participation of any State in the program if—
(A) the Secretary determines that the State is not adequately carrying out the responsibilities assigned to the State;
(B) the Secretary provides to the State—
(i) a notification of the determination of noncompliance;
(ii) a period of not less than 120 days to take such corrective action as the Secretary determines to be necessary to comply with the applicable agreement; and
(iii) on request of the Governor of the State, a detailed description of each responsibility in need of corrective action regarding an inadequacy identified under subparagraph (A); and
(C) the State, after the notification and period described in clauses (i) and (ii) of subparagraph (B), fails to take satisfactory corrective action, as determined by the Secretary.
(2)Termination by the state.—The State may terminate the participation of the State in the program at any time by providing to the Secretary a notice not later than the date that is 90 days before the date of termination, and subject to such terms and conditions as the Secretary may provide.
(e)State Agency Deemed to Be Federal Agency.—A State agency that is assigned a responsibility under a memorandum of understanding shall be deemed to be a Federal agency for the purposes of the Federal law under which the responsibility is exercised.
(f)Legal Fees.—A State assuming the responsibilities of the Secretary under this section for a specific project may use funds apportioned to the State under section 104(b)(2) for attorney’s fees directly attributable to eligible activities associated with the project.
(Added Pub. L. 109–59, title VI, § 6004(a), Aug. 10, 2005, 119 Stat. 1867; amended Pub. L. 112–141, div. A, title I, § 1312, July 6, 2012, 126 Stat. 545; Pub. L. 114–94, div. A, title I, § 1307, Dec. 4, 2015, 129 Stat. 1390; Pub. L. 117–58, div. A, title I, § 11314, Nov. 15, 2021, 135 Stat. 540.)

CITE AS: 23 USC 326

§ 327. Surface transportation project delivery program
(a)Establishment.—
(1)In general.—The Secretary shall carry out a surface transportation project delivery program (referred to in this section as the “program”).
(2)Assumption of responsibility.—
(A)In general.—Subject to the other provisions of this section, with the written agreement of the Secretary and a State, which may be in the form of a memorandum of understanding, the Secretary may assign, and the State may assume, the responsibilities of the Secretary with respect to one or more highway projects within the State under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).
(B)Additional responsibility.—If a State assumes responsibility under subparagraph (A)—
(i) the Secretary may assign to the State, and the State may assume, all or part of the responsibilities of the Secretary for environmental review, consultation, or other action required under any Federal environmental law pertaining to the review or approval of a specific project;
(ii) at the request of the State, the Secretary may also assign to the State, and the State may assume, the responsibilities of the Secretary with respect to 1 or more railroad, public transportation, or multimodal projects within the State under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.);
(iii) in a State that has assumed the responsibilities of the Secretary under clause (ii), a recipient of assistance under chapter 53 of title 49 may request that the Secretary maintain the responsibilities of the Secretary with respect to 1 or more public transportation projects within the State under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.); but
(iv) the Secretary may not assign—(I) any responsibility imposed on the Secretary by section 134 or 135 or section 5303 or 5304 of title 49; or(II) responsibility for any conformity determination required under section 176 of the Clean Air Act (42 U.S.C. 7506).
(C)Procedural and substantive requirements.—A State shall assume responsibility under this section subject to the same procedural and substantive requirements as would apply if that responsibility were carried out by the Secretary.
(D)Federal responsibility.—Any responsibility of the Secretary not explicitly assumed by the State by written agreement under this section shall remain the responsibility of the Secretary.
(E)No effect on authority.—Nothing in this section preempts or interferes with any power, jurisdiction, responsibility, or authority of an agency, other than the Department of Transportation, under applicable law (including regulations) with respect to a project.
(F)Preservation of flexibility.—The Secretary may not require a State, as a condition of participation in the program, to forego project delivery methods that are otherwise permissible for projects.
(G)Legal fees.—A State assuming the responsibilities of the Secretary under this section for a specific project may use funds apportioned to the State under section 104(b)(2) for attorneys’ fees directly attributable to eligible activities associated with the project, including the payment of fees awarded under section 2412 of title 28.
(b)State Participation.—
(1)Participating states.—All States are eligible to participate in the program.
(2)Application.—Not later than 270 days after the date on which amendments to this section by the MAP-21 take effect, the Secretary shall amend, as appropriate, regulations that establish requirements relating to information required to be contained in any application of a State to participate in the program, including, at a minimum—
(A) the projects or classes of projects for which the State anticipates exercising the authority that may be granted under the program;
(B) verification of the financial resources necessary to carry out the authority that may be granted under the program; and
(C) evidence of the notice and solicitation of public comment by the State relating to participation of the State in the program, including copies of comments received from that solicitation.
(3)Public notice.—
(A)In general.—Each State that submits an application under this subsection shall give notice of the intent of the State to participate in the program not later than 30 days before the date of submission of the application.
(B)The State shall provide notice and solicit public comment under this paragraph by publishing the complete application of the State in accordance with the appropriate public notice law of the State.
(4)Selection criteria.—The Secretary may approve the application of a State under this section only if—
(A) the regulatory requirements under paragraph (2) have been met;
(B) the Secretary determines that the State has the capability, including financial and personnel, to assume the responsibility; and
(C) the head of the State agency having primary jurisdiction over highway matters enters into a written agreement with the Secretary described in subsection (c).
(5)Other federal agency views.—If a State applies to assume a responsibility of the Secretary that would have required the Secretary to consult with another Federal agency, the Secretary shall solicit the views of the Federal agency before approving the application.
(c)Written Agreement.—A written agreement under this section shall—
(1) be executed by the Governor or the top-ranking transportation official in the State who is charged with responsibility for highway construction;
(2) be in such form as the Secretary may prescribe;
(3) provide that the State—
(A) agrees to assume all or part of the responsibilities of the Secretary described in subsection (a);
(B) expressly consents, on behalf of the State, to accept the jurisdiction of the Federal courts for the compliance, discharge, and enforcement of any responsibility of the Secretary assumed by the State;
(C) certifies that State laws (including regulations) are in effect that—
(i) authorize the State to take the actions necessary to carry out the responsibilities being assumed; and
(ii) are comparable to section 552 of title 5, including providing that any decision regarding the public availability of a document under those State laws is reviewable by a court of competent jurisdiction; and
(D) agrees to maintain the financial resources necessary to carry out the responsibilities being assumed;
(4) require the State to provide to the Secretary any information the Secretary reasonably considers necessary to ensure that the State is adequately carrying out the responsibilities assigned to the State;
(5) except as provided under paragraph (7), have a term of not more than 5 years;
(6) be renewable; and
(7) for any State that has participated in a program under this section (or under a predecessor program) for at least 10 years, have a term of 10 years.
(d)Jurisdiction.—
(1)In general.—The United States district courts shall have exclusive jurisdiction over any civil action against a State for failure to carry out any responsibility of the State under this section.
(2)Legal standards and requirements.—A civil action under paragraph (1) shall be governed by the legal standards and requirements that would apply in such a civil action against the Secretary had the Secretary taken the actions in question.
(3)Intervention.—The Secretary shall have the right to intervene in any action described in paragraph (1).
(e)Effect of Assumption of Responsibility.—A State that assumes responsibility under subsection (a)(2) shall be solely responsible and solely liable for carrying out, in lieu of and without further approval of the Secretary, the responsibilities assumed under subsection (a)(2), until the program is terminated as provided in subsection (j).
(f)Limitations on Agreements.—Nothing in this section permits a State to assume any rulemaking authority of the Secretary under any Federal law.
(g)Audits.—
(1)In general.—To ensure compliance by a State with any agreement of the State under subsection (c) (including compliance by the State with all Federal laws for which responsibility is assumed under subsection (a)(2)), for each State participating in the program under this section, the Secretary shall—
(A) not later than 180 days after the date of execution of the agreement, meet with the State to review implementation of the agreement and discuss plans for the first annual audit;
(B) conduct annual audits during each of the first 4 years of State participation;
(C) in the case of an agreement period of greater than 5 years pursuant to subsection (c)(7), conduct an audit covering the first 5 years of the agreement period; and
(D) ensure that the time period for completing an audit, from initiation to completion (including public comment and responses to those comments), does not exceed 180 days.
(2)Public availability and comment.—
(A)In general.—An audit conducted under paragraph (1) shall be provided to the public for comment.
(B)Response.—Not later than 60 days after the date on which the period for public comment ends, the Secretary shall respond to public comments received under subparagraph (A).
(3)Audit team.—
(A)In general.—An audit conducted under paragraph (1) shall be carried out by an audit team determined by the Secretary, in consultation with the State, in accordance with subparagraph (B).
(B)Consultation.—Consultation with the State under subparagraph (A) shall include a reasonable opportunity for the State to review and provide comments on the proposed members of the audit team.
(h)Monitoring.—After the fourth year of the participation of a State in the program, the Secretary shall monitor compliance by the State with the written agreement, including the provision by the State of financial resources to carry out the written agreement.
(i)Report to Congress.—The Secretary shall submit to Congress an annual report that describes the administration of the program.
(j)Termination.—
(1)Termination by secretary.—The Secretary may terminate the participation of any State in the program if—
(A) the Secretary determines that the State is not adequately carrying out the responsibilities assigned to the State;
(B) the Secretary provides to the State—
(i) a notification of the determination of noncompliance;
(ii) a period of not less than 120 days to take such corrective action as the Secretary determines to be necessary to comply with the applicable agreement; and
(iii) on request of the Governor of the State, a detailed description of each responsibility in need of corrective action regarding an inadequacy identified under subparagraph (A); and
(C) the State, after the notification and period provided under subparagraph (B), fails to take satisfactory corrective action, as determined by the Secretary.
(2)Termination by the state.—The State may terminate the participation of the State in the program at any time by providing to the Secretary a notice by not later than the date that is 90 days before the date of termination, and subject to such terms and conditions as the Secretary may provide.
(k)Capacity Building.—The Secretary, in cooperation with representatives of State officials, may carry out education, training, peer-exchange, and other initiatives as appropriate—
(1) to assist States in developing the capacity to participate in the assignment program under this section; and
(2) to promote information sharing and collaboration among States that are participating in the assignment program under this section.
(l)Relationship to Locally Administered Projects.—A State granted authority under this section may, as appropriate and at the request of a local government—
(1) exercise such authority on behalf of the local government for a locally administered project; or
(2) provide guidance and training on consolidating and minimizing the documentation and environmental analyses necessary for sponsors of a locally administered project to comply with the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and any comparable requirements under State law.
(m)Agency Deemed to Be Federal Agency.—A State agency that is assigned a responsibility under an agreement under this section shall be deemed to be an agency for the purposes of section 2412 of title 28.
(Added Pub. L. 109–59, title VI, § 6005(a), Aug. 10, 2005, 119 Stat. 1868; amended Pub. L. 111–322, title II, § 2203(c), Dec. 22, 2010, 124 Stat. 3526; Pub. L. 112–140, title I, § 101(e)(1), June 29, 2012, 126 Stat. 392; Pub. L. 112–141, div. A, title I, § 1313(a)–(h), July 6, 2012, 126 Stat. 545–547; Pub. L. 114–94, div. A, title I, §§ 1308, 1446(d)(3), Dec. 4, 2015, 129 Stat. 1390, 1438; Pub. L. 117–58, div. A, title I, § 11313, Nov. 15, 2021, 135 Stat. 539.)

CITE AS: 23 USC 327

§ 328. Eligibility for environmental restoration and pollution abatement
(a)In General.—Subject to subsection (b), environmental restoration and pollution abatement to minimize or mitigate the impacts of any transportation project funded under this title (including retrofitting and construction of stormwater treatment systems to meet Federal and State requirements under sections 401 and 402 of the Federal Water Pollution Control Act (33 U.S.C. 1341; 1342)) may be carried out to address water pollution or environmental degradation caused wholly or partially by a transportation facility.
(b)Maximum Expenditure.—In a case in which a transportation facility is undergoing reconstruction, rehabilitation, resurfacing, or restoration, the expenditure of funds under this section for environmental restoration or pollution abatement described in subsection (a) shall not exceed 20 percent of the total cost of the reconstruction, rehabilitation, resurfacing, or restoration of the facility.
(Added Pub. L. 109–59, title VI, § 6006(b), Aug. 10, 2005, 119 Stat. 1872.)

CITE AS: 23 USC 328

§ 329. Eligibility for control of noxious weeds and aquatic noxious weeds and establishment of native species
(a)In General.—In accordance with all applicable Federal law (including regulations), funds made available to carry out this section may be used for the following activities if such activities are related to transportation projects funded under this title:
(1) Establishment of plants selected by State and local transportation authorities to perform one or more of the following functions: abatement of stormwater runoff, stabilization of soil, provision of habitat, forage, and migratory way stations for Monarch butterflies, other native pollinators, and honey bees, and aesthetic enhancement.
(2) Management of plants which impair or impede the establishment, maintenance, or safe use of a transportation system.
(b)Included Activities.—The establishment and management under subsection (a)(1) and (a)(2) may include—
(1) right-of-way surveys to determine management requirements to control Federal or State noxious weeds as defined in the Plant Protection Act (7 U.S.C. 7701 et seq.) or State law, and brush or tree species, whether native or nonnative, that may be considered by State or local transportation authorities to be a threat with respect to the safety or maintenance of transportation systems;
(2) establishment of plants, whether native or nonnative with a preference for native to the maximum extent possible, for the purposes defined in subsection (a)(1);
(3) control or elimination of plants as defined in subsection (a)(2);
(4) elimination of plants to create fuel breaks for the prevention and control of wildfires; and
(5) training.
(c)Contributions.—
(1)In general.—Subject to paragraph (2), an activity described in subsection (a) may be carried out concurrently with, in advance of, or following the construction of a project funded under this title.
(2)Condition for activities conducted in advance of project construction.—An activity described in subsection (a) may be carried out in advance of construction of a project only if the activity is carried out in accordance with all applicable requirements of Federal law (including regulations) and State transportation planning processes.
(Added Pub. L. 109–59, title VI, § 6006(b), Aug. 10, 2005, 119 Stat. 1872; amended Pub. L. 114–94, div. A, title I, § 1415(b), Dec. 4, 2015, 129 Stat. 1421.)

CITE AS: 23 USC 329

§ 330. Program for eliminating duplication of environmental reviews
(a)Establishment.—
(1)In general.—The Secretary shall establish a pilot program to authorize States that have assumed responsibilities of the Secretary under section 327 and are approved to participate in the program under this section to conduct environmental reviews and make approvals for projects under State environmental laws and regulations instead of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), consistent with the requirements of this section.
(2)Participating states.—The Secretary may select not more than 2 States to participate in the program.
(3)Alternative environmental review and approval procedures defined.—In this section, the term “alternative environmental review and approval procedures” means—
(A) substitution of 1 or more State environmental laws for—
(i) the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.);
(ii) any provisions of section 139 establishing procedures for the implementation of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) that are under the authority of the Secretary, as the Secretary, in consultation with the State, considers appropriate; and
(iii) related regulations and Executive orders; and
(B) substitution of 1 or more State environmental regulations for—
(i) the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.);
(ii) any provisions of section 139 establishing procedures for the implementation of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) that are under the authority of the Secretary, as the Secretary, in consultation with the State, considers appropriate; and
(iii) related regulations and Executive orders.
(b)Application.—To be eligible to participate in the program, a State shall submit to the Secretary an application containing such information as the Secretary may require, including—
(1) a full and complete description of the proposed alternative environmental review and approval procedures of the State, including—
(A) the procedures the State uses to engage the public and consider alternatives to the proposed action; and
(B) the extent to which the State considers environmental consequences or impacts on resources potentially impacted by the proposed action (such as air, water, or species);
(2) each Federal requirement described in subsection (a)(3) that the State is seeking to substitute;
(3) each State law or regulation that the State intends to substitute for such Federal requirement;
(4) an explanation of the basis for concluding that the State law or regulation is at least as stringent as the Federal requirement described in subsection (a)(3);
(5) a description of the projects or classes of projects for which the State anticipates exercising the authority that may be granted under the program;
(6) verification that the State has the financial resources necessary to carry out the authority that may be granted under the program;
(7) evidence of having sought, received, and addressed comments on the proposed application from the public; and
(8) any such additional information as the Secretary, or, with respect to section (d)(1)(A), the Secretary in consultation with the Chair, may require.
(c)Review of Application.—In accordance with subsection (d), the Secretary shall—
(1) review and accept public comments on an application submitted under subsection (b);
(2) approve or disapprove the application not later than 120 days after the date of receipt of an application that the Secretary determines is complete; and
(3) transmit to the State notice of the approval or disapproval, together with a statement of the reasons for the approval or disapproval.
(d)Approval of Application.—
(1)In general.—The Secretary shall approve an application submitted under subsection (b) only if—
(A) the Secretary, with the concurrence of the Chair and after considering any public comments received pursuant to subsection (c), determines that the laws and regulations of the State described in the application are at least as stringent as the Federal requirements described in subsection (a)(3);
(B) the Secretary, after considering any public comments received pursuant to subsection (c), determines that the State has the capacity, including financial and personnel, to assume the responsibility;
(C) the State has executed an agreement with the Secretary in accordance with section 327; and
(D) the State has executed an agreement with the Secretary under this section that—
(i) has been executed by the Governor or the top-ranking transportation official in the State who is charged with responsibility for highway construction;
(ii) is in such form as the Secretary may prescribe;
(iii) provides that the State—(I) agrees to assume the responsibilities, as identified by the Secretary, under this section;(II) expressly consents, on behalf of the State, to accept the jurisdiction of the Federal courts under subsection (e)(1) for the compliance, discharge, and enforcement of any responsibility under this section;(III) certifies that State laws (including regulations) are in effect that—(aa) authorize the State to take the actions necessary to carry out the responsibilities being assumed; and(bb) are comparable to section 552 of title 5, including providing that any decision regarding the public availability of a document under those State laws is reviewable by a court of competent jurisdiction; and(IV) agrees to maintain the financial resources necessary to carry out the responsibilities being assumed;
(iv) requires the State to provide to the Secretary any information the Secretary reasonably considers necessary to ensure that the State is adequately carrying out the responsibilities assigned to the State;
(v) has a term of not more than 5 years; and
(vi) is renewable.
(2)Exclusion.—The National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) shall not apply to a decision by the Secretary to approve or disapprove an application submitted under this section.
(e)Judicial Review.—
(1)In general.—The United States district courts shall have exclusive jurisdiction over any civil action against a State relating to the failure of the State—
(A) to meet the requirements of this section; or
(B) to follow the alternative environmental review and approval procedures approved pursuant to this section.
(2)Limitation on review.—
(A)In general.—Notwithstanding any other provision of law, a claim seeking judicial review of a permit, license, or approval issued by a State under this section shall be barred unless the claim is filed not later than 150 days as set forth in section 139(l) after the date of publication in the Federal Register by the Secretary of a notice that the permit, license, or approval is final pursuant to the law under which the action is taken.
(B)Deadlines.—
(i)Notification.—The State shall notify the Secretary of the final action of the State not later than 10 days after the final action is taken.
(ii)Publication.—The Secretary shall publish the notice of final action in the Federal Register not later than 30 days after the date of receipt of the notice under clause (i).
(C)Savings provision.—Nothing in this subsection creates a right to judicial review or places any limit on filing a claim that a person has violated the terms of a permit, license, or approval.
(3)New information.—
(A)In general.—A State shall consider new information received after the close of a comment period if the information satisfies the requirements for a supplemental environmental impact statement under section 771.130 of title 23, Code of Federal Regulations (or successor regulations).
(B)Treatment of final agency action.—
(i)In general.—The final agency action that follows preparation of a supplemental environmental impact statement, if required, shall be considered a separate final agency action, and the deadline for filing a claim for judicial review of the action shall be 150 days as set forth in section 139(l) after the date of publication in the Federal Register by the Secretary of a notice announcing such action.
(ii)Deadlines.—(I)Notification.—The State shall notify the Secretary of the final action of the State not later than 10 days after the final action is taken.(II)Publication.—The Secretary shall publish the notice of final action in the Federal Register not later than 30 days after the date of receipt of the notice under subclause (I).
(f)Election.—A State participating in the programs under this section and section 327, at the discretion of the State, may elect to apply the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) instead of the alternative environmental review and approval procedures of the State.
(g)Adoption or Incorporation by Reference of Documents.—To the maximum extent practicable and consistent with Federal law, other Federal agencies with authority over a project subject to this section shall adopt or incorporate by reference documents produced by a participating State under this section to satisfy the requirements of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).
(h)Relationship to Locally Administered Projects.—
(1)In general.—A State with an approved program under this section, at the request of a local government, may exercise authority under that program on behalf of up to 25 local governments for locally administered projects.
(2)Scope.—For up to 25 local governments selected by a State with an approved program under this section, the State shall be responsible for ensuring that any environmental review, consultation, or other action required under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) or the State program, or both, meets the requirements of such Act or program.
(i)Review and Termination.—
(1)In general.—A State program approved under this section shall at all times be in accordance with the requirements of this section.
(2)Review.—The Secretary shall review each State program approved under this section not less than once every 5 years.
(3)Public notice and comment.—In conducting the review process under paragraph (2), the Secretary shall provide notice and an opportunity for public comment.
(4)Withdrawal of approval.—If the Secretary, in consultation with the Chair, determines at any time that a State is not administering a State program approved under this section in accordance with the requirements of this section, the Secretary shall so notify the State, and if appropriate corrective action is not taken within a reasonable time, not to exceed 90 days, the Secretary shall withdraw approval of the State program.
(5)Extensions and terminations.—At the conclusion of the review process under paragraph (2), the Secretary may extend for an additional 5-year period or terminate the authority of a State under this section to substitute the laws and regulations of the State for the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).
(j)Report to Congress.—Not later than 2 years after the date of enactment of this section, and annually thereafter, the Secretary shall submit to the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Environment and Public Works of the Senate a report that describes the administration of the program, including—
(1) the number of States participating in the program;
(2) the number and types of projects for which each State participating in the program has used alternative environmental review and approval procedures;
(3) a description and assessment of whether implementation of the program has resulted in more efficient review of projects; and
(4) any recommendations for modifications to the program.
(k)Sunset.—The program shall terminate 12 years after the date of enactment of this section.
(l)Definitions.—In this section, the following definitions apply:
(1)Chair.—The term “Chair” means the Chair of the Council on Environmental Quality.
(2)Multimodal project.—The term “multimodal project” has the meaning given that term in section 139(a).
(3)Program.—The term “program” means the pilot program established under this section.
(4)Project.—The term “project” means—
(A) a project requiring approval under this title, chapter 53 of subtitle III of title 49, or subtitle V of title 49; and
(B) a multimodal project.
(Added Pub. L. 114–94, div. A, title I, § 1309(b), Dec. 4, 2015, 129 Stat. 1392; amended Pub. L. 115–254, div. B, title V, § 578, Oct. 5, 2018, 132 Stat. 3394.)

CITE AS: 23 USC 330

§ 331. Evaluation of projects within an operational right-of-way
(a)Definitions.—
(1)Eligible project or activity.—
(A)In general.—In this section, the term “eligible project or activity” means a project or activity within an existing operational right-of-way (as defined in section 771.117(c)(22) of title 23, Code of Federal Regulations (or successor regulations))—
(i)(I) eligible for assistance under this title; or(II) administered as if made available under this title;
(ii) that is—(I) a preventive maintenance, preservation, or highway safety improvement project (as defined in section 148(a)); or(II) a new turn lane that the State advises in writing to the Secretary would assist public safety; and
(iii) that—(I) is classified as a categorical exclusion under section 771.117 of title 23, Code of Federal Regulations (or successor regulations); or(II) if the project or activity does not receive assistance described in clause (i) would be considered a categorical exclusion if the project or activity received assistance described in clause (i).
(B)Exclusion.—The term “eligible project or activity” does not include a project to create a new travel lane.
(2)Preliminary evaluation.—The term “preliminary evaluation”, with respect to an application described in subsection (b)(1), means an evaluation that is customary or practicable for the relevant agency to complete within a 45-day period for similar applications.
(3)Relevant agency.—The term “relevant agency” means a Federal agency, other than the Federal Highway Administration, with responsibility for review of an application from a State for a permit, approval, or jurisdictional determination for an eligible project or activity.
(b)Action Required.—
(1)In general.—Subject to paragraph (2), not later than 45 days after the date of receipt of an application by a State for a permit, approval, or jurisdictional determination for an eligible project or activity, the head of the relevant agency shall—
(A) make at least a preliminary evaluation of the application; and
(B) notify the State of the results of the preliminary evaluation under subparagraph (A).
(2)Extension.—The head of the relevant agency may extend the review period under paragraph (1) by not more than 30 days if the head of the relevant agency provides to the State written notice that includes an explanation of the need for the extension.
(3)Failure to act.—If the head of the relevant agency fails to meet a deadline under paragraph (1) or (2), as applicable, the head of the relevant agency shall—
(A) not later than 30 days after the date of the missed deadline, submit to the State, the Committee on Environment and Public Works of the Senate, and the Committee on Transportation and Infrastructure of the House of Representatives a report that describes why the deadline was missed; and
(B) not later than 14 days after the date on which a report is submitted under subparagraph (A), make publicly available, including on the internet, a copy of that report.
(Added Pub. L. 117–58, div. A, title I, § 11309(a), Nov. 15, 2021, 135 Stat. 535.)

CITE AS: 23 USC 331

§ 332. Pollinator-friendly practices on roadsides and highway rights-of-way
(a)In General.—The Secretary shall establish a program to provide grants to eligible entities to carry out activities to benefit pollinators on roadsides and highway rights-of-way, including the planting and seeding of native, locally-appropriate grasses and wildflowers, including milkweed.
(b)Eligible Entities.—An entity eligible to receive a grant under this section is—
(1) a State department of transportation;
(2) an Indian tribe; or
(3) a Federal land management agency.
(c)Application.—To be eligible to receive a grant under this section, an eligible entity shall submit to the Secretary an application at such time, in such manner, and containing such information as the Secretary may require, including a pollinator-friendly practices plan described in subsection (d).
(d)Pollinator-friendly Practices Plan.—
(1)In general.—An eligible entity shall include in the application under subsection (c) a plan that describes the pollinator-friendly practices that the eligible entity has implemented or plans to implement, including—
(A) practices relating to mowing strategies that promote early successional vegetation and limit disturbance during periods of highest use by target pollinator species on roadsides and highway rights-of-way, such as—
(i) reducing the mowing swath outside of the State-designated safety zone;
(ii) increasing the mowing height;
(iii) reducing the mowing frequency;
(iv) refraining from mowing monarch and other pollinator habitat during periods in which monarchs or other pollinators are present;
(v) use of a flushing bar and cutting at reduced speeds to reduce pollinator deaths due to mowing; or
(vi) reducing raking along roadsides and highway rights-of-way;
(B) implementation of an integrated vegetation management plan that includes approaches such as mechanical tree and brush removal, targeted and judicious use of herbicides, and mowing, to address weed issues on roadsides and highway rights-of-way;
(C) planting or seeding of native, locally-appropriate grasses and wildflowers, including milkweed, on roadsides and highway rights-of-way to enhance pollinator habitat, including larval host plants;
(D) removing nonnative grasses from planting and seeding mixes, except for use as nurse or cover crops;
(E) obtaining expert training or assistance on pollinator-friendly practices, including—
(i) native plant identification;
(ii) establishment and management of locally-appropriate native plants that benefit pollinators;
(iii) land management practices that benefit pollinators; and
(iv) pollinator-focused integrated vegetation management; or
(F) any other pollinator-friendly practices the Secretary determines to be appropriate.
(2)Coordination.—In developing a plan under paragraph (1), an eligible entity that is a State department of transportation or a Federal land management agency shall coordinate with applicable State agencies, including State agencies with jurisdiction over agriculture and fish and wildlife.
(3)Consultation.—In developing a plan under paragraph (1)—
(A) an eligible entity that is a State department of transportation or a Federal land management agency shall consult with affected or interested Indian tribes; and
(B) any eligible entity may consult with nonprofit organizations, institutions of higher education, metropolitan planning organizations, and any other relevant entities.
(e)Award of Grants.—
(1)In general.—The Secretary shall provide a grant to each eligible entity that submits an application under subsection (c), including a plan under subsection (d), that the Secretary determines to be satisfactory.
(2)Amount of grants.—The amount of a grant under this section—
(A) shall be based on the number of pollinator-friendly practices the eligible entity has implemented or plans to implement; and
(B) shall not exceed $150,000.
(f)Use of Funds.—An eligible entity that receives a grant under this section shall use the funds for the implementation, improvement, or further development of the plan under subsection (d).
(g)Federal Share.—The Federal share of the cost of an activity carried out with a grant under this section shall be 100 percent.
(h)Best Practices.—The Secretary shall develop and make available to eligible entities best practices for, and a priority ranking of, pollinator-friendly practices on roadsides and highway rights-of-way.
(i)Technical Assistance.—On request of an eligible entity that receives a grant under this section, the Secretary shall provide technical assistance with the implementation, improvement, or further development of a plan under subsection (d).
(j)Administrative Costs.—For each fiscal year, the Secretary may use not more than 2 percent of the amounts made available to carry out this section for the administrative costs of carrying out this section.
(k)Report.—Not later than 1 year after the date on which the first grant is provided under this section, the Secretary shall submit to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives a report on the implementation of the program under this section.
(l)Authorization of Appropriations.—
(1)In general.—There is authorized to be appropriated to carry out this section $2,000,000 for each of fiscal years 2022 through 2026.
(2)Availability.—Amounts made available under this section shall remain available for a period of 3 years after the last day of the fiscal year for which the funds are authorized.
(Added Pub. L. 117–58, div. A, title I, § 11528(a), Nov. 15, 2021, 135 Stat. 610.)

CITE AS: 23 USC 332