23 U.S.C. § 120 — Federal share payable

**(a) Interstate System Projects.—** (1) **In general.—** — Except as otherwise provided in this chapter, the Federal share payable on account of any project on the Interstate System (including a project to add high occupancy vehicle lanes and a project to add auxiliary lanes but excluding a project to add any other lanes) shall be 90 percent of the total cost thereof, plus a percentage of the remaining 10 percent of such cost in any State containing unappropriated and unreserved public lands and nontaxable Indian lands, individual and tribal, exceeding 5 percent of the total area of all lands therein, equal to the percentage that the area of such lands in such State is of its total area; except that such Federal share payable on any project in any State shall not exceed 95 percent of the total cost of such project. (2) **State-determined lower federal share.—** — In the case of any project subject to paragraph (1), a State may determine a lower Federal share than the Federal share determined under such paragraph. **(b) Other Projects.—** Except as otherwise provided in this title, the Federal share payable on account of any project or activity carried out under this title (other than a project subject to subsection (a)) shall be— (1) 80 percent of the cost thereof, except that in the case of any State containing nontaxable Indian lands, individual and tribal, and public domain lands (both reserved and unreserved) exclusive of national forests and national parks and monuments, exceeding 5 percent of the total area of all lands therein, the Federal share, for purposes of this chapter, shall be increased by a percentage of the remaining cost equal to the percentage that the area of all such lands in such State, is of its total area; or (2) 80 percent of the cost thereof, except that in the case of any State containing nontaxable Indian lands, individual and tribal, public domain lands (both reserved and unreserved), national forests, and national parks and monuments, the Federal share, for purposes of this chapter, shall be increased by a percentage of the remaining cost equal to the percentage that the area of all such lands in such State is of its total area; except that the Federal share payable on any project in a State shall not exceed 95 percent of the total cost of any such project. In any case where a State elects to have the Federal share provided in paragraph (2) of this subsection, the State must enter into an agreement with the Secretary covering a period of not less than 1 year, requiring such State to use solely for purposes eligible for assistance under this title (other than paying its share of projects approved under this title) during the period covered by such agreement the difference between the State’s share as provided in paragraph (2) and what its share would be if it elected to pay the share provided in paragraph (1) for all projects subject to such agreement. In the case of any project subject to this subsection, a State may determine a lower Federal share than the Federal share determined under the preceding sentences of this subsection. **(c) Increased Federal Share.—** (1) **Certain safety projects.—** — The Federal share payable on account of any project for traffic control signalization, maintaining minimum levels of retroreflectivity of highway signs or pavement markings, traffic circles (also known as “roundabouts”), safety rest areas, pavement marking, shoulder and centerline rumble strips and stripes, commuter carpooling and vanpooling, rail-highway crossing closure, or installation of traffic signs, traffic lights, guardrails, impact attenuators, concrete barrier endtreatments, breakaway utility poles, vehicle-to-infrastructure communication equipment, or priority control systems for emergency vehicles or transit vehicles at signalized intersections may amount to 100 percent of the cost of construction of such projects; except that not more than 10 percent of all sums apportioned for all the Federal-aid programs for any fiscal year in accordance with [section 104 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title23-section104&num=0&edition=prelim) shall be used under this subsection. In this subsection, the term “safety rest area” means an area where motor vehicle operators can park their vehicles and rest, where food, fuel, and lodging services are not available, and that is located on a segment of highway with respect to which the Secretary determines there is a shortage of public and private areas at which motor vehicle operators can park their vehicles and rest. (2) **CMAQ projects.—** — The Federal share payable on account of a project or program carried out under section 149 with funds obligated in fiscal year 2008 or 2009, or both, shall be not less than 80 percent and, at the discretion of the State, may be up to 100 percent of the cost thereof. (3) **Innovative project delivery.—** (A) *In general.—* — Except as provided in subparagraph (C), the Federal share payable on account of a project, program, or activity carried out with funds apportioned under paragraph (1), (2), (5)(D), or (6) of section 104(b) may, at the discretion of the State, be up to 100 percent for any such project, program, or activity that the Secretary determines— (i) contains innovative project delivery methods that improve work zone safety for motorists or workers and the quality of the facility; (ii) contains innovative technologies, engineering or design approaches, manufacturing processes, financing, or contracting or project delivery methods that improve the quality of, extend the service life of, or decrease the long-term costs of maintaining highways and bridges; (iii) accelerates project delivery while complying with other applicable Federal laws (including regulations) and not causing any significant adverse environmental impact; or (iv) reduces congestion related to highway construction. (B) *Examples.—* — Projects, programs, and activities described in subparagraph (A) may include the use of— (i) prefabricated bridge elements and systems and other technologies to reduce bridge construction time; (ii) innovative construction equipment, materials, or techniques, including the use of in-place recycling technology and digital 3-dimensional modeling technologies; (iii) innovative contracting methods, including the design-build and the construction manager-general contractor contracting methods and alternative bidding; (iv) intelligent compaction equipment; (v) innovative pavement materials that have a demonstrated life cycle of 75 or more years, are manufactured with reduced greenhouse gas emissions, and reduce construction-related congestion by rapidly curing; (vi) contractual provisions that provide safety contingency funds to incorporate safety enhancements to work zones prior to or during roadway construction activities; or (vii) contractual provisions that offer a contractor an incentive payment for early completion of the project, program, or activity, subject to the condition that the incentives are accounted for in the financial plan of the project, when applicable. (C) *Limitations.—* (i) *In general.—* — In each fiscal year, a State may use the authority under subparagraph (A) for up to 10 percent of the combined apportionments of the State under paragraphs (1), (2), (5)(D), and (6) of section 104(b). (ii) *Federal share increase.—* — The Federal share payable on account of a project, program, or activity described in subparagraph (A) may be increased by up to 5 percent of the total project cost. (4) **Pooled funding.—** — Notwithstanding any other provision of law, the Secretary may waive the non-Federal share of the cost of a project or activity under section 502(b)(6) that is carried out with amounts apportioned under section 104(b)(2) after considering appropriate factors, including whether— (A) decreasing or eliminating the non-Federal share would best serve the interests of the Federal-aid highway program; and (B) the project or activity addresses national or regional high priority research, development, and technology transfer problems in a manner that would benefit multiple States or metropolitan planning organizations. **(d)** The Secretary may rely on a statement from the Secretary of the Interior as to the area of the lands referred to in subsections (a) and (b) of this section. The Secretary of the Interior is authorized and directed to provide such statement annually. **(e) Emergency Relief.—** The Federal share payable for any repair or reconstruction provided for by funds made available under section 125 for any project on a Federal-aid highway, including the Interstate System, shall not exceed the Federal share payable on a project on the system as provided in subsections (a) and (b), except that— (1) the Federal share payable for eligible emergency repairs to minimize damage, protect facilities, or restore essential traffic accomplished within 270 days after the actual occurrence of the natural disaster or catastrophic failure may amount to 100 percent of the cost of the repairs; (2) the Federal share payable for any repair or reconstruction of Federal land transportation facilities, other Federally owned roads that are open to public travel, and tribal transportation facilities may amount to 100 percent of the cost of the repair or reconstruction; (3) the Secretary shall extend the time period in paragraph (1) taking into consideration any delay in the ability of the State to access damaged facilities to evaluate damage and the cost of repair; and (4) the Federal share payable for eligible repairs to restore damaged facilities to predisaster condition may amount to 90 percent of the cost of the repairs if the eligible expenses incurred by the State due to natural disasters or catastrophic failures in a Federal fiscal year exceeds the annual apportionment of the State under section 104 for the fiscal year in which the disasters or failures occurred. **(f)** The Secretary is authorized to cooperate with the State transportation departments and with the Department of the Interior in the construction of Federal-aid highways within Indian reservations and national parks and monuments under the jurisdiction of the Department of the Interior and to pay the amount assumed therefor from the funds apportioned in accordance with [section 104 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title23-section104&num=0&edition=prelim) to the State wherein the reservations and national parks and monuments are located. **(g)** Notwithstanding any other provision of this section or of this title, the Federal share payable on account of any project under this title in the Virgin Islands, Guam, American Samoa, or the Commonwealth of the Northern Mariana Islands shall be 100 per centum of the total cost of the project. **(h) Increased Non-Federal Share.—** Notwithstanding any other provision of this title and subject to such criteria as the Secretary may establish, a State may contribute an amount in excess of the non-Federal share of a project under this title so as to decrease the Federal share payable on such project. **(i) Credit for Non-Federal Share.—** (1) **Eligibility.—** (A) *In general.—* — A State may use as a credit toward the non-Federal share requirement for any funds made available to carry out this title (other than the emergency relief program authorized by section 125) or chapter 53 of title 49 toll revenues that are generated and used by public, quasi-public, and private agencies to build, improve, or maintain highways, bridges, or tunnels that serve the public purpose of interstate commerce. (B) *Special rule for use of federal funds.—* — If the public, quasi-public, or private agency has built, improved, or maintained the facility using Federal funds, the credit under this paragraph shall be reduced by a percentage equal to the percentage of the total cost of building, improving, or maintaining the facility that was derived from Federal funds. (C) *Federal funds defined.—* — In this paragraph, the term “Federal funds” does not include loans of Federal funds or other financial assistance that must be repaid to the Government. (2) **Maintenance of effort.—** (A) *In general.—* — The credit for any non-Federal share provided under this subsection shall not reduce nor replace State funds required to match Federal funds for any program under this title. (B) *Condition on receipt of credit.—* — To receive a credit under paragraph (1) for a fiscal year, a State shall enter into such agreement as the Secretary may require to ensure that the State will maintain its non-Federal transportation capital expenditures in such fiscal year at or above the average level of such expenditures for the preceding 3 fiscal years; except that if, for any 1 of the preceding 3 fiscal years, the non-Federal transportation capital expenditures of the State were at a level that was greater than 130 percent of the average level of such expenditures for the other 2 of the preceding 3 fiscal years, the agreement shall ensure that the State will maintain its non-Federal transportation capital expenditures in the fiscal year of the credit at or above the average level of such expenditures for the other 2 fiscal years. (C) *Transportation capital expenditures defined.—* — In subparagraph (B), the term “non-Federal transportation capital expenditures” includes any payments made by the State for issuance of transportation-related bonds. (3) **Treatment.—** (A) *Limitation on liability.—* — Use of a credit for a non-Federal share under this subsection that is received from a public, quasi-public, or private agency— (i) shall not expose the agency to additional liability, additional regulation, or additional administrative oversight; and (ii) shall not subject the agency to any additional Federal design standards or laws (including regulations) as a result of providing the non-Federal share other than those to which the agency is already subject. (B) *Chartered multistate agencies.—* — When a credit that is received from a chartered multistate agency is applied to a non-Federal share under this subsection, such credit shall be applied equally to all charter States. **(j) Use of Federal Agency Funds.—** Notwithstanding any other provision of law, any Federal funds other than those made available under this title and title 49 may be used to pay the non-Federal share of the cost of any transportation project that is within, adjacent to, or provides access to Federal land, the Federal share of which is funded under this title or chapter 53 of title 49. **(k) Use of Federal Land and Tribal Transportation Funds.—** Notwithstanding any other provision of law, the funds authorized to be appropriated to carry out the tribal transportation program under section 202 and the Federal lands transportation program under section 203 may be used to pay the non-Federal share of the cost of any project that is funded under this title or chapter 53 of title 49 and that provides access to or within Federal or tribal land. **(l) Federal Share Flexibility Pilot Program.—** (1) **Establishment.—** — Not later than 180 days after the date of enactment of the Surface Transportation Reauthorization Act of 2021, the Secretary shall establish a pilot program (referred to in this subsection as the “pilot program”) to give States additional flexibility with respect to the Federal requirements under this section. (2) **Program.—** (A) *In general.—* — Notwithstanding any other provision of law, a State participating in the pilot program (referred to in this subsection as a “participating State”) may determine the Federal share on a project, multiple-project, or program basis for projects under any of the following: (i) The national highway performance program under section 119. (ii) The surface transportation block grant program under section 133. (iii) The highway safety improvement program under section 148. (iv) The congestion mitigation and air quality improvement program under section 149. (v) The national highway freight program under section 167. (vi) The carbon reduction program under section 175. (vii) Subsection (c) of the PROTECT program under section 176. (B) *Requirements.—* (i) *Maximum federal share.—* — Subject to clause (iii), the Federal share of the cost of an individual project carried out under a program described in subparagraph (A) by a participating State and to which the participating State is applying the Federal share requirements under the pilot program may be up to 100 percent. (ii) *Minimum federal share.—* — No individual project carried out under a program described in subparagraph (A) by a participating State and to which the participating State is applying the Federal share requirements under the pilot program shall have a Federal share of 0 percent. (iii) *Determination.—* — The average annual Federal share of the total cost of all projects authorized under a program described in subparagraph (A) to which a participating State is applying the Federal share requirements under the pilot program shall be not more than the average of the maximum Federal share of those projects if those projects were not carried out under the pilot program. (C) *Selection.—* (i) *Application.—* — A State seeking to be a participating State shall— (I) submit to the Secretary an application in such form, at such time, and containing such information as the Secretary may require; and (II) have in place adequate financial controls to allow the State to determine the average annual Federal share requirements under the pilot program. (ii) *Requirement.—* — For each of fiscal years 2022 through 2026, the Secretary shall select not more than 10 States to be participating States.