23 USC 106 - Project approval and oversight

Editorial Notes

References in Text

Executive Order No. 12893, referred to in subsec. (f)(1), is set out as a note under section 501 of Title 31, Money and Finance.

Amendments

2021—Subsec. (g)(3). Puspan. L. 117–58, § 11307(f), designated existing provisions as subpar. (A) and inserted span, struck out “annual” before “reviews”, and added subpar. (B).

Subsec. (h)(3)(D), (E). Puspan. L. 117–58, § 11508(d)(1), added subpar. (D) and redesignated former subpar. (D) as (E).

2015—Subsec. (span)(1). Puspan. L. 114–94 inserted “(including payments made pursuant to a long-term concession agreement, such as availability payments)” after “construction of the project”.

2012—Subsec. (a)(2). Puspan. L. 112–141, § 1503(a)(1), inserted “recipient” before “formalizing”.

Subsec. (c)(1). Puspan. L. 112–141, § 1503(a)(2)(A)(ii), (iii), substituted “, including projects on the Interstate System” for “but not on the Interstate System” and “with respect to the projects unless the Secretary determines that the assumption is not appropriate.” for “of projects unless the State or the Secretary determines that such assumption is not appropriate.”

Puspan. L. 112–141, § 1503(a)(2)(A)(i), struck out “Non-interstate” before “nhs” in span. Resulting initial word was editorially changed to “NHS” to conform to style of paragraph headings.

Subsec. (c)(4). Puspan. L. 112–141, § 1503(a)(2)(B), added par. (4) and struck out former par. (4). Prior to amendment, text read as follows: “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.”

Subsec. (e)(1)(A). Puspan. L. 112–141, § 1503(a)(3)(A)(i), substituted “planning” for “concept” and “multidisciplinary” for “multidisciplined” in introductory provisions.

Subsec. (e)(1)(A)(i). Puspan. L. 112–141, § 1503(a)(3)(A)(ii), added cl. (i) and struck out former cl. (i) which read as follows: “providing the needed functions safely, reliably, and at the lowest overall cost;”.

Subsec. (e)(2). Puspan. L. 112–141, § 1503(a)(3)(B)(i), struck out “or other cost-reduction analysis” after “engineering analysis” in introductory provisions.

Subsec. (e)(2)(A). Puspan. L. 112–141, § 1503(a)(3)(B)(ii), substituted “National Highway System receiving Federal assistance” for “Federal-aid system” and “$50,000,000” for “$25,000,000”.

Subsec. (e)(2)(B). Puspan. L. 112–141, § 1503(a)(3)(B)(iii), inserted “on the National Highway System receiving Federal assistance” after “a bridge project” and substituted “$40,000,000” for “$20,000,000”.

Subsec. (e)(4), (5). Puspan. L. 112–141, § 1503(a)(3)(C), added pars. (4) and (5) and struck out former par. (4). Prior to amendment, text read as follows: “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.”

Subsec. (h)(1)(B). Puspan. L. 112–141, § 1503(a)(4)(A), inserted “, including a phasing plan when applicable” after “financial plan”.

Subsec. (h)(3). Puspan. L. 112–141, § 1503(a)(4)(B), added par. (3) and struck out former par. (3). Prior to amendment, text read as follows: “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.”

Subsec. (j). Puspan. L. 112–141, § 1503(a)(5), added subsec. (j).

2005—Subsec. (e). Puspan. L. 109–59, § 1904(a)(1), added subsec. (e) and struck out span and text of former subsec. (e). Text read as follows: “For such projects as the Secretary determines advisable, plans, specifications, and estimates for proposed projects on any Federal-aid highway shall be accompanied by a value engineering analysis or other cost reduction analysis.”

Subsecs. (g) to (i). Puspan. L. 109–59, § 1904(a)(2), added subsecs. (g) to (i) and struck out former subsecs. (g) and (h) which related to establishment of a value engineering analysis program for projects with an estimated total cost of $25,000,000 or more and requirement that recipient of assistance for a project with an estimated total cost of $1,000,000,000 or more submit an annual financial plan for the project.

1998—Puspan. L. 105–178, § 1305(a)(1), substituted “Project approval and oversight” for “Plans, specifications, and estimates” in section catchline.

Subsecs. (a) to (d). Puspan. L. 105–178, § 1305(a)(3), added subsecs. (a) to (d) and struck out former subsecs. (a) to (d) which related to requirement for State highway departments to submit to Secretary for approval plans, specifications, and estimates for each proposed highway project, special rules relating to resurfacing, restoring, and rehabilitating projects on National Highway System, to low-cost National Highway System projects, and to non-National Highway System projects, limitation on estimates for construction engineering, and provisions relating to value engineering or other cost reduction analysis.

Subsec. (e). Puspan. L. 105–178, § 1305(a)(3), added subsec. (e). Former subsec. (e) redesignated (f).

Subsec. (f). Puspan. L. 105–178, § 1305(c), added subsec. (f) and struck out former subsec. (f) which read as follows:

“(f) Life-Cycle Cost Analysis.—

“(1) Establishment.—The Secretary shall establish a program to require States to conduct an analysis of the life-cycle costs of each usable project segment on the National Highway System with a cost of $25,000,000 or more.

“(2) Analysis of the life-cycle costs defined.—In this subsection, the term ‘analysis of the life-cycle costs’ 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, reconstruction, rehabilitation, restoring, and resurfacing costs, over the life of the project segment.”

Puspan. L. 105–178, § 1305(a)(2), redesignated subsec. (e) as (f). Former subsec. (f) redesignated (g).

Subsec. (g). Puspan. L. 105–178, § 1305(a)(2), redesignated subsec. (f) as (g).

Subsec. (h). Puspan. L. 105–178, § 1305(span), added subsec. (h).

1995—Subsecs. (e), (f). Puspan. L. 104–59 added subsecs. (e) and (f).

1991—Subsec. (a). Puspan. L. 102–240, § 1016(span)(1), inserted “this section and” before “section 117”.

Subsec. (span). Puspan. L. 102–240, § 1016(span)(2), added subsec. (span) and struck out former subsec. (span) which read as follows: “In addition to the approval required under subsection (a) of this section, proposed specifications for projects for construction on (1) the Federal-aid secondary system, except in States where all public roads and highways are under the control and supervision of the State highway department, and (2) the Federal-aid urban system, shall be determined by the State highway department and the appropriate local road officials in cooperation with each other.”

Subsec. (c). Puspan. L. 102–240, § 1018(a), amended subsec. (c) generally. Prior to amendment, subsec. (c) read as follows: “Items included in any such estimate for construction engineering shall not exceed 15 percent of the total estimated cost of a project financed with Federal-aid highway funds, after excluding from such total estimate cost, the estimated costs of rights-of-way, preliminary engineering, and construction engineering.”

1987—Subsec. (c). Puspan. L. 100–17 substituted “15 percent” for “10 per centum” and struck out at end “However, this limitation shall be 15 per centum in any State with respect to which the Secretary finds such higher limitation to be necessary.”

1976—Subsec. (c). Puspan. L. 94–280 substituted “Federal-aid highway funds” for “Federal-aid primary, secondary, or urban funds” and “such total estimate cost” for “such total estimated cost” and struck out 10 per centum limitation for any project financed with interstate funds.

1970—Subsec. (span). Puspan. L. 91–605, § 106(e), inserted reference to the Federal-aid urban system.

Subsec. (d). Puspan. L. 91–605, § 142, added subsec. (d).

1963—Subsec. (c). Puspan. L. 88–157 substituted “a project financed with Federal-aid primary, secondary, or urban funds” for “the project” and provided for limitation, on items included in estimates for construction engineering on projects financed with Federal-aid primary, secondary, or urban funds, of 15 percent of total estimated cost of the project where found by the Secretary to be necessary and for 10-percent limitation on projects financed with interstate funds.

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Puspan. L. 117–58 effective Oct. 1, 2021, except as otherwise provided, see section 10003 of Puspan. L. 117–58, set out as a note under section 101 of this title.

Amendment by section 11508(d)(1) of Puspan. L. 117–58 only applicable to a public-private partnership agreement entered into on or after Nov. 15, 2021, see section 11508(e) of Puspan. L. 117–58, set out in a Requirements for Transportation Projects Carried Out Through Public-Private Partnerships note below.

Effective Date of 2015 Amendment

Amendment by Puspan. L. 114–94 effective Oct. 1, 2015, see section 1003 of Puspan. L. 114–94, set out as a note under section 5313 of Title 5, Government Organization and Employees.

Effective Date of 2012 Amendment

Amendment by Puspan. L. 112–141 effective Oct. 1, 2012, see section 3(a) of Puspan. L. 112–141, set out as an Effective and Termination Dates of 2012 Amendment note under section 101 of this title.

Effective Date of 1991 Amendment

Amendment by Puspan. L. 102–240 effective Dec. 18, 1991, and applicable to funds authorized to be appropriated or made available after Sept. 30, 1991, and, with certain exceptions, not applicable to funds appropriated or made available on or before Sept. 30, 1991, see section 1100 of Puspan. L. 102–240, set out as a note under section 104 of this title.

Improved Federal-State Stewardship and Oversight Agreements

Puspan. L. 117–58, div. A, title I, § 11307(a)–(e), Nov. 15, 2021, 135 Stat. 532–534, provided that:

“(a)Definition of Template.—In this section, the term ‘template’ means a template created by the Secretary [of Transportation] for Federal-State stewardship and oversight agreements that—

“(1) includes all standard terms found in stewardship and oversight agreements, including any terms in an attachment to the agreement;

“(2) is developed in accordance with section 106 of title 23, United States Code, or any other applicable authority; and

“(3) may be developed with consideration of relevant regulations, guidance, or policies.

“(span)Request for Comment.—

“(1)In general.—Not later than 60 days after the date of enactment of this Act [Nov. 15, 2021], the Secretary shall publish in the Federal Register the template and a notice requesting public comment on ways to improve the template.

“(2)Comment period.—The Secretary shall provide a period of not less than 60 days for public comment on the notice under paragraph (1).

“(3)Certain issues.—The notice under paragraph (1) shall allow comment on any aspect of the template and shall specifically request public comment on—

“(A) whether the template should be revised to delete standard terms requiring approval by the Secretary of the policies, procedures, processes, or manuals of the States, or other State actions, if Federal law (including regulations) does not specifically require an approval;

“(B) opportunities to modify the template to allow adjustments to the review schedules for State practices or actions, including through risk-based approaches, program reviews, process reviews, or other means; and

“(C) any other matters that the Secretary determines to be appropriate.

“(c)Notice of Action; Updates.—

“(1)In general.—Not later than 1 year after the date of enactment of this Act, after considering the comments received in response to the Federal Register notice under subsection (span), the Secretary shall publish in the Federal Register a notice that—

“(A) describes any proposed changes to be made, and any alternatives to such changes, to the template;

“(B) addresses comments in response to which changes were not made to the template; and

“(C) prescribes a schedule and a plan to execute a process for implementing the changes referred to in subparagraph (A).

“(2)Approval requirements.—In addressing comments under paragraph (1)(B), the Secretary shall include an explanation of the basis for retaining any requirement for approval of State policies, procedures, processes, or manuals, or other State actions, if Federal law (including regulations) does not specifically require the approval.

“(3)Implementation.—

“(A)In general.—Not later than 60 days after the date on which the notice under paragraph (1) is published, the Secretary shall make changes to the template in accordance with—

“(i) the changes described in the notice under paragraph (1)(A); and

“(ii) the schedule and plan described in the notice under paragraph (1)(C).

“(B)Updates.—Not later than 1 year after the date on which the revised template under subparagraph (A) is published, the Secretary shall update existing agreements with States according to the template updated under subparagraph (A).

“(d)Inclusion of Non-standard Terms.—Nothing in this section precludes the inclusion in a Federal-State stewardship and oversight agreement of non-standard terms to address a State-specific matter, including risk-based stewardship and Department [of Transportation] oversight involvement in individual projects of division interest.

“(e)Compliance With Non-statutory Terms.—

“(1)In general.—The Secretary shall not enforce or otherwise require a State to comply with approval requirements that are not required by Federal law (including regulations) in a Federal-State stewardship and oversight agreement.

“(2)Approval authority.—Notwithstanding any other provision of law, the Secretary shall not assert approval authority over any matter in a Federal-State stewardship and oversight agreement reserved to States.”

Requirements for Transportation Projects Carried Out Through Public-Private Partnerships

Puspan. L. 117–58, div. A, title I, § 11508, Nov. 15, 2021, 135 Stat. 587, provided that:

“(a)Definitions.—In this section:

“(1)Project.—The term ‘project’ means a project (as defined in section 101 of title 23, United States Code) that—

“(A) is carried out, in whole or in part, using Federal financial assistance; and

“(B) has an estimated total cost of $100,000,000 or more.

“(2)Public-private partnership.—The term ‘public-private partnership’ means an agreement between a public agency and a private entity to finance, build, and maintain or operate a project.

“(span)Requirements for Projects Carried Out Through Public-private Partnerships.—With respect to a public-private partnership, as a condition of receiving Federal financial assistance for a project, the Secretary [of Transportation] shall require the public partner, not later than 3 years after the date of opening of the project to traffic—

“(1) to conduct a review of the project, including a review of the compliance of the private partner with the terms of the public-private partnership agreement;

“(2)

(A) to certify to the Secretary that the private partner of the public-private partnership is meeting the terms of the public-private partnership agreement for the project; or

“(B) to notify the Secretary that the private partner of the public-private partnership has not met 1 or more of the terms of the public-private partnership agreement for the project, including a brief description of each violation of the public-private partnership agreement; and

“(3) to make publicly available the certification or notification, as applicable, under paragraph (2) in a form that does not disclose any proprietary or confidential business information.

“(c)Notification.—If the Secretary provides Federal financial assistance to a project carried out through a public-private partnership, not later than 30 days after the date on which the Federal financial assistance is first obligated, 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 notification of the Federal financial assistance made available for the project.

“(d)Value for Money Analysis.—

“(1)Project approval and oversight.—

[Amended this section.]

“(2)Surface transportation block grant program.—

[Amended section 133 of this title.]

“(3)TIFIA.—

[Amended section 602 of this title.]

“(e)Applicability.—This section and the amendments made by this section shall only apply to a public-private partnership agreement entered into on or after the date of enactment of this Act [Nov. 15, 2021].”

Assumption of Authorities

Puspan. L. 114–94, div. A, title I, § 1316, Dec. 4, 2015, 129 Stat. 1403, provided that:

“(a)In General.—The Secretary [of Transportation] shall use the authority under section 106(c) of title 23, United States Code, to the maximum extent practicable, to allow a State to assume the responsibilities of the Secretary for project design, plans, specifications, estimates, contract awards, and inspection of projects, on both a project-specific and programmatic basis.

“(span)Submission of Recommendations.—Not later than 18 months after the date of enactment of this Act [Dec. 4, 2015], the Secretary, in cooperation with the States, 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 recommendations for legislation to permit the assumption of additional authorities by States, including with respect to real estate acquisition and project design.”

Consolidation of Grants

Puspan. L. 112–141, div. A, title I, § 1527, July 6, 2012, 126 Stat. 581, provided that:

“(a)Definitions.—In this section, the term ‘recipient’ means—

“(1) a State, local, or tribal government, including—

“(A) a territory of the United States;

“(B) a transit agency;

“(C) a port authority;

“(D) a metropolitan planning organization; or

“(E) any other political subdivision of a State or local government;

“(2) a multistate or multijurisdictional group, if each member of the group is an entity described in paragraph (1); and

“(3) a public-private partnership, if both parties are engaged in building the project.

“(span)Consolidation.—

“(1)In general.—A recipient that receives multiple grant awards from the Department [of Transportation] to support 1 multimodal project may request that the Secretary [of Transportation] designate 1 modal administration in the Department to be the lead administering authority for the overall project.

“(2)New starts.—Any project that includes funds awarded under section 5309 of title 49, United States Code, shall be exempt from consolidation under this section unless the grant recipient requests the Federal Transit Administration to be the lead administering authority.

“(3)Review.—

“(A)In general.—Not later than 30 days after the date on which a request under paragraph (1) is made, the Secretary shall review the request and approve or deny the designation of a single modal administration as the lead administering authority and point of contact for the Department.

“(B)Notification.—

“(i)In general.—The Secretary shall notify the requestor of the decision of the Secretary under subparagraph (A) in such form and at such time as the Secretary and the requestor agree.

“(ii)Denial.—If a request is denied, the Secretary shall provide the requestor with a detailed explanation of the reasoning of the Secretary with the notification under clause (i).

“(c)Duties.—

“(1)In general.—A modal administration designated as a lead administering authority under this section shall—

“(A) be responsible for leading and coordinating the integrated project management team, which shall consist of all of the other modal administrations in the Department [of Transportation] relating to the multimodal project; and

“(B) to the extent feasible during the first 30 days of carrying out the multimodal project, identify overlapping or duplicative regulatory requirements that exist for the project and propose a single, streamlined approach to meeting all of the applicable regulatory requirements through the activities described in subsection (d).

“(2)Administration.—

“(A)In general.—The Secretary [of Transportation] shall transfer all amounts that have been awarded for the multimodal project to the modal administration designated as the lead administering authority.

“(B)Option.—

“(i)In general.—Participation under this section shall be optional for recipients, and no recipient shall be required to participate.

“(ii)Secretarial duties.—The Secretary is not required to identify every recipient that may be eligible to participate under this section.

“(d)Cooperation.—

“(1)In general.—The Secretary [of Transportation] and modal administrations with relevant jurisdiction over a multimodal project should cooperate on project review and delivery activities at the earliest practicable time.

“(2)Purposes.—The purposes of the cooperation under paragraph (1) are—

“(A) to avoid delays and duplication of effort later in the process;

“(B) to prevent potential conflicts; and

“(C) to ensure that planning and project development decisions are made in a streamlined manner and consistent with applicable law.

“(e)Applicability.—Nothing in this section shall—

“(1) supersede, amend, or modify the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) or any other Federal environmental law; or

“(2) affect the responsibility of any Federal officer to comply with or enforce any law described in paragraph (1).”

Study of Value Engineering

Puspan. L. 102–240, title I, § 1091, Dec. 18, 1991, 105 Stat. 2024, required the Secretary to study the effectiveness and benefits of value engineering review programs applied to Federal-aid highway projects and to report to Congress, no later than 1 year after Dec. 18, 1991, on the results of the study, including recommendations on how value engineering could be utilized and improved in Federal-aid highway projects.

Modification of Project Agreements To Effectuate Requirement of Four-Lanes of Traffic

Puspan. L. 89–574, § 5(span), Sept. 13, 1966, 80 Stat. 767, as amended by Puspan. L. 97–449, § 2(a), Jan. 12, 1983, 96 Stat. 2439, authorized Secretary to modify project agreements entered into prior to Sept. 13, 1966, pursuant to section 106 of this title for purpose of effectuating amendment made by this section (amending section 109(span) of this title to add a requirement of four lanes of traffic) with respect to as much of National System of Interstate and Defense Highways [now Dwight D. Eisenhower System of Interstate and Defense Highways] as may be possible.