23 U.S.C. § 115 — Advance construction

Page 96 TITLE 23—HIGHWAYS § 115 ‘‘(c) TECHNOLOGY PARTNERSHIPS.— ‘‘(1) IN GENERAL.—The Secretary [of Transpor- tation] may make grants or enter into cooperative agreements or other transactions to foster the devel- opment, improvement, and creation of innovative technologies and facilities to improve safety, enhance the speed of highway construction, and improve the quality and durability of highways. ‘‘(2) FEDERAL SHARE.—The Federal share of the cost of an activity carried out under this subsection shall not exceed 80 percent. ‘‘(d) TECHNOLOGY TRANSFER AND INFORMATION DIS- SEMINATION.— ‘‘(1) IN GENERAL.—The Secretary [of Transpor- tation] shall conduct a highways for life technology transfer program. ‘‘(2) AVAILABILITY OF INFORMATION.—The Secretary shall ensure that the information and technology used, developed, or deployed under this subsection is made available to the transportation community and the public. ‘‘(e) STAKEHOLDER INPUT AND INVOLVEMENT.—The Sec- retary [of Transportation] shall establish a process for stakeholder input and involvement in the development, implementation, and evaluation of the Highways for LIFE Pilot Program. The process may include partici- pation by representatives of State departments of transportation and other interested persons. ‘‘(f) PROJECT MONITORING AND EVALUATION.—The Sec- retary [of Transportation] shall monitor and evaluate the effectiveness of any activity carried out under this section. ‘‘(g) CONTRACT AUTHORITY.—Except as otherwise pro- vided in this section, funds authorized to be appro- priated to carry out this section shall be available for obligation in the same manner as if the funds were ap- portioned under chapter 1 of title 23, United States Code. ‘‘(h) STATE DEFINED.—In this section, the term ‘State’ has the meaning such term has in section 101(a) of title 23, United States Code.’’ MATERIALS PRODUCED BY CONVICT LABOR Pub. L. 101–162, title II, § 202, Nov. 21, 1989, 103 Stat. 1002, provided that: ‘‘During fiscal year 1990 and here- after, materials produced by convict labor may be used in the construction of any highways or portion of high- ways located on Federal-aid systems, as described in section 103 of title 23, United States Code.’’ Similar fiscal year provisions were contained in the following appropriation acts: Pub. L. 100–459, title II, § 202, Oct. 1, 1988, 102 Stat. 2199. Pub. L. 100–202, § 101(a) [title II, § 202], Dec. 22, 1987, 101 Stat. 1329, 1329–15. Pub. L. 99–500, § 101(b) [title II, § 202], Oct. 18, 1986, 100 Stat. 1783–39, 1783–51, and Pub. L. 99–591, § 101(b) [title II, § 202], Oct. 30, 1986, 100 Stat. 3341–39, 3341–51. Pub. L. 99–180, title II, § 202, Dec. 13, 1985, 99 Stat. 1146. Pub. L. 98–411, title II, § 202, Aug. 30, 1984, 98 Stat. 1558, repealed by Pub. L. 100–17, title I, § 112(b)(2), Apr. 2, 1987, 101 Stat. 149. Pub. L. 98–166, title II, § 202, Nov. 28, 1983, 97 Stat. 1085. ACCELERATION OF PROJECTS Pub. L. 97–424, title I, § 129, Jan. 6, 1983, 96 Stat. 2118, provided that: ‘‘The Secretary of Transportation shall by rule or regulation establish, as soon as practicable, alternative methods for processing projects under title 23, United States Code, so as to reduce the time re- quired from the request for project approval through the completion of construction. In carrying out this section the Secretary shall utilize the knowledge and experience resulting from the demonstration project authorized by and carried out under section 141 of the Federal-Aid Highway Act of 1976 [Pub. L. 94–280, title I, § 141, May 5, 1976, 90 Stat. 444, formerly set out as a note under former section 124 of this title].’’ § 115. Advance construction (a) IN GENERAL.—The Secretary may authorize a State to proceed with a project authorized under this title— (1) without the use of Federal funds; and (2) in accordance with all procedures and re- quirements applicable to the project other than those procedures and requirements that limit the State to implementation of a project— (A) with the aid of Federal funds pre- viously apportioned or allocated to the State; or (B) with obligation authority previously allocated to the State. (b) OBLIGATION OF FEDERAL SHARE.—The Sec- retary, on the request of a State and execution of a project agreement, may obligate all or a portion of the Federal share of a project author- ized to proceed under this section from any cat- egory of funds for which the project is eligible. (c) INCLUSION IN TRANSPORTATION IMPROVE- MENT PROGRAM.—The Secretary may approve an application for a project under this section only if the project is included in the transportation improvement program of the State developed under section 135(g). (Pub. L. 85–767, Aug. 27, 1958, 72 Stat. 896; Pub. L. 90–495, § 25(a), (b), Aug. 23, 1968, 82 Stat. 828, 829; Pub. L. 93–643, § 111, Jan. 4, 1975, 88 Stat. 2285; Pub. L. 96–106, § 4, Nov. 9, 1979, 93 Stat. 797; Pub. L. 97–424, title I, § 113, Jan. 6, 1983, 96 Stat. 2106; Pub. L. 100–17, title I, § 113(a)–(d)(1), Apr. 2, 1987, 101 Stat. 149, 150; Pub. L. 102–302, § 103, June 22, 1992, 106 Stat. 252; Pub. L. 104–59, title III, § 308, Nov. 28, 1995, 109 Stat. 582; Pub. L. 105–178, title I, §§ 1103(l)(3)(A), 1106(c)(1)(A), 1226(a), title V, § 5119(d), June 9, 1998, 112 Stat. 126, 136, 452; Pub. L. 105–206, title IX, § 9003(a), July 22, 1998, 112 Stat. 837; Pub. L. 109–59, title I, § 1501(a), Aug. 10, 2005, 119 Stat. 1235; Pub. L. 110–244, title I, § 101(j), June 6, 2008, 122 Stat. 1574; Pub. L. 117–58, div. A, title I, § 11525(e), Nov. 15, 2021, 135 Stat. 607.) Editorial Notes AMENDMENTS 2021—Subsec. (c). Pub. L. 117–58 substituted ‘‘section 135(g)’’ for ‘‘section 135(f)’’. 2008—Subsecs. (c), (d). Pub. L. 110–244 redesignated subsec. (d) as (c). 2005—Subsecs. (a), (b). Pub. L. 109–59, § 1501(a)(2), added subsecs. (a) and (b) and struck out former sub- secs. (a) and (b), which related to payment of the Fed- eral share of the cost of congestion mitigation and air quality improvement, surface transportation, bridge, planning, and research projects and Interstate and Na- tional Highway System projects which have been sub- ject to advance construction by a State. Subsecs. (c), (d). Pub. L. 109–59, § 1501(a)(1), redesig- nated subsec. (c) as (d). 1998—Subsec. (a). Pub. L. 105–178, § 1106(c)(1)(A)(i), struck out ‘‘Substitute,’’ before ‘‘Congestion’’ in head- ing. Subsec. (a)(1)(A)(i). Pub. L. 105–178, §§ 1106(c)(1)(A)(ii), 5119(d), struck out ‘‘103(e)(4)(H),’’ after ‘‘under section’’ and substituted ‘‘or 505’’ for ‘‘or 307’’. Subsec. (b). Pub. L. 105–178, § 1226(a)(1), as added by Pub. L. 105–206, § 9003(a), struck out designation and heading of par. (1), redesignated subpars. (A) and (B) as pars. (1) and (2), respectively, realigned margins, and Page 97 TITLE 23—HIGHWAYS § 115 struck out former pars. (2) and (3), which related to bond interest for projects under construction on Jan. 1, 1983, and directed that Federal share of cost of con- struction would include amount of bond interest but not in excess of estimated costs over actual costs. Subsec. (b)(1). Pub. L. 105–178, § 1103(l)(3)(A), sub- stituted ‘‘104(b)(4)’’ for ‘‘104(b)(5)’’. Subsecs. (c), (d). Pub. L. 105–178, § 1226(a)(2), (3), as added by Pub. L. 105–206, § 9003(a), redesignated subsec. (d) as (c) and struck out heading and text of former subsec. (c). Text read as follows: ‘‘In determining the apportionment for any fiscal year under the provisions of section 103(e)(4), 104, 134, 144,, or 307 of this title, any such project constructed by a State without the aid of Federal funds shall not be considered completed until an application under the provisions of this section with respect to such project has been approved by the Sec- retary.’’ 1995—Subsec. (d). Pub. L. 104–59 amended subsec. (d) generally. Prior to amendment, subsec. (d) read as fol- lows: ‘‘(d) LIMITATION ON ADVANCED FUNDING.—The Sec- retary may not approve an application under this sec- tion unless an authorization for section 103(e)(4), 104, 144, or 307 of this title, as the case may be, is in effect for the fiscal year for which the application is sought beyond the currently authorized funds for each State. No applications may be approved which will exceed the State’s expected apportionment of such authoriza- tions.’’ 1992—Subsec. (a). Pub. L. 102–302, § 103(1), in heading substituted ‘‘SUBSTITUTE, CONGESTION MITIGATION AND AIR QUALITY IMPROVEMENT, SURFACE TRANSPORTATION, BRIDGE, PLANNING, AND RESEARCH PROJECTS’’ for ‘‘SUB- STITUTE, URBAN, SECONDARY, BRIDGE, PLANNING, RE- SEARCH, AND SAFETY CONSTRUCTION PROJECTS’’. Subsec. (a)(1)(A)(i). Pub. L. 102–302, § 103(2)(A), added cl. (i) and struck out former cl. (i) which read as fol- lows: ‘‘has obligated all funds apportioned or allocated to it under section 103(e)(4)(H), section 104(b)(2), section 104(b)(6), section 104(f), section 130, section 144, section 152, or section 307 of this title, or’’. Subsec. (a)(2)(A). Pub. L. 102–302, § 103(2)(B), added subpar. (A) and struck out former subpar. (A) which read as follows: ‘‘prior to commencement of the project the Secretary approves the plans and specifications therefor in the same manner as other projects, and’’. Subsec. (a)(3). Pub. L. 102–302, § 103(2)(C), struck out par. (3) which read as follows: ‘‘LIMITATION WITH RE- SPECT TO CURRENTLY AUTHORIZED FUNDS.—The Sec- retary may not approve an application under this sec- tion unless an authorization for section 103(e)(4), 104, 130, 144, 152, or 307 of this title, as the case may be, is in effect for the fiscal year for which the application is sought beyond the currently authorized funds for such State. No application may be approved which will ex- ceed the State’s expected apportionment of such au- thorizations. This paragraph shall have no effect during the period beginning January 1, 1987, and ending Sep- tember 30, 1990.’’ Subsec. (b). Pub. L. 102–302, § 103(3), (4), in heading substituted ‘‘NATIONAL HIGHWAY SYSTEM’’ for ‘‘PRI- MARY’’ and in par. (1) substituted ‘‘National Highway System’’ for ‘‘Federal-aid primary system’’. Subsec. (c). Pub. L. 102–302, § 103(5), struck out ‘‘152’’ after ‘‘144,’’. Subsec. (d). Pub. L. 102–302, § 103(6), added subsec. (d) and struck out former subsec. (d) which read as follows: ‘‘LIMITATION ON ADVANCED FUNDING FOR FISCAL YEARS 1987–1990.—The Secretary may not approve an applica- tion of a State under this section with respect to a project with funds apportioned, or currently authorized to be apportioned, under section 103(e)(4)(H), 104, 130, 144, 152, or 307 if the amount of approved applications with respect to such projects exceeds the total of unob- ligated funds apportioned or allocated to the State under such section, plus such State’s expected appor- tionment under such section from existing authoriza- tions plus an amount equal to such State’s expected ap- portionment under such section (other than section 104(b)(5)(A)) for one additional fiscal year. This sub- section shall only be effective during the period begin- ning January 1, 1987, and ending September 30, 1990.’’ 1987—Pub. L. 100–17, § 113(d)(1)(A), substituted ‘‘Ad- vance construction’’ for ‘‘Construction by States in ad- vance of apportionment’’ in section catchline. Subsec. (a). Pub. L. 100–17, § 113(a), amended subsec. (a) generally. Prior to amendment, subsec. (a) read as follows: ‘‘(1) When a State has obligated all funds apportioned or allocated to it under section 103(e)(4), 104, or 144 of this title, other than Interstate funds, and proceeds to construct any highway substitute, Federal-aid system, or bridge project, respectively, other than an Interstate project funded under section 104(b)(5) of this title, with- out the aid of Federal funds in accordance with all pro- cedures and all requirements applicable to such a project, except insofar as such procedures and require- ments limit a State to the construction of projects with the aid of Federal funds previously apportioned to it, the Secretary, upon application by such State and his approval of such application, is authorized to pay to such State the Federal share of the costs of construc- tion of such project when additional funds are appor- tioned to such State under section 103(e)(4), 104, or 144, respectively, of this title if— ‘‘(A) prior to the construction of the project the Secretary approves the plans and specifications therefor in the same manner as other projects, and ‘‘(B) the project conforms to the applicable stand- ards adopted under section 109 of this title. ‘‘(2) The Secretary may not approve an application under this section unless an authorization for section 103(e)(4), 104, or 144 of this title, as the case may be, is in effect for the fiscal year for which the application is sought beyond the currently authorized funds for such State. No application may be approved which will ex- ceed the State’s expected apportionment of such au- thorizations.’’ Subsec. (b). Pub. L. 100–17, § 113(b), inserted heading. Subsec. (b)(1). Pub. L. 100–17, § 113(b), amended par. (1) generally. Prior to amendment, par. (1) read as follows: ‘‘When a State proceeds to construct any project on the Interstate System without the aid of Federal funds, as that System may be designated at that time, in accord- ance with all procedures and all requirements applica- ble to projects on such System, except insofar as such procedures and requirements limit a State to the con- struction of projects with the aid of Federal funds pre- viously apportioned to it, the Secretary, upon applica- tion by such State and his approval of such application, is authorized to pay to such State the Federal share of the cost of construction of such project when addi- tional funds are apportioned to such State under sec- tion 104 of this title if— ‘‘(A) prior to the construction of the project the Secretary approves the plans and specifications therefor in the same manner as other projects on the Interstate System, and ‘‘(B) the project conforms to the applicable stand- ards under section 109 of this title.’’ Subsec. (b)(2), (3). Pub. L. 100–17, § 113(d)(1)(B)–(D), in- serted headings and aligned pars. (2) and (3) with par. (1), as amended. Subsec. (c). Pub. L. 100–17, § 113(d)(1)(E), (F), inserted heading and substituted ‘‘134, 144, 152, or 307’’ for ‘‘or 144’’. Subsec. (d). Pub. L. 100–17, § 113(c), added subsec. (d). 1983—Subsec. (a). Pub. L. 97–424, § 113(c), designated existing provisions as pars. (1) and (2) and designated former pars. (1) and (2) as subpars. (A) and (B), respec- tively, of par. (1); in par. (1) as so redesignated, sub- stituted ‘‘When a State has obligated all funds appro- priated or allocated to it under section 103(e)(4), 104, or 144 of this title, other than ‘‘interstate funds, and pro- ceeds to construct any highway substitute, Federal-aid system, or bridge project, respectively, other than an Interstate project funded under section 104(b)(5) of this title, without the aid of Federal funds in accordance with all procedures and all requirements applicable to Page 98 TITLE 23—HIGHWAYS § 116 such a project, except insofar as such procedures and requirements limit a State to the construction of projects with the aid of Federal funds previously appor- tioned to it, the Secretary, upon application by such State and his approval of such application, is author- ized to pay to such State the Federal share of the costs of construction of such project when additional funds are apportioned to such State under section 103(e)(4), 104, or 144, respectively, of this title if—’’, for ‘‘When a State has obligated all funds for any of the Federal-aid systems, other than the Interstate System, apportioned to it under section 104 of this title, and proceeds to con- struct any project without the aid of Federal funds, in- cluding one or more parts of any project, on any of the Federal-aid systems in such State, other than the Interstate System, as any of those systems may be des- ignated at that time, in accordance with all procedures and all requirements applicable to projects on any such system, except insofar as such procedures and require- ments limit a State to the construction of projects with the aid of Federal funds previously apportioned to it, the Secretary, upon application by such State and his approval of such application, is authorized to pay to such State the Federal share of the costs of construc- tion of such project when additional funds are appor- tioned to such State under section 104 of this title if— ’’; in subpar. (A) thereof struck out ‘‘on the Federal-aid system involved’’ after ‘‘other projects’’; and in par. (2) as so designated inserted ‘‘for section 103(e)(4), 104, or 144 of this title, as the case may be,’’ after ‘‘unless au- thorization’’, and made a new sentence of existing pro- visions, beginning with ‘‘No application’’. Subsec. (b)(2). Pub. L. 97–424, § 113(a), substituted ‘‘1983’’ for ‘‘1978’’ wherever appearing. Subsec. (b)(3). Pub. L. 97–424, § 113(b), added par. (3). Subsec. (c). Pub. L. 97–424, § 113(d), substituted ‘‘sec- tion 103(e)(4), 104, or 144’’ for ‘‘section 104’’ after ‘‘provi- sions of’’. 1979—Subsec. (b). Pub. L. 96–106 designated existing provisions as par. (1) and cls. (1) and (2) thereof as sub- pars. (A) and (B) and added par. (2). 1975—Subsec. (a). Pub. L. 93–643, § 111(a), substituted ‘‘other than the Interstate System’’ for ‘‘including the Interstate System’’ in two places. Subsecs. (b), (c). Pub. L. 93–643, § 111(b), added subsec. (b) and redesignated former subsec. (b) as (c). 1968—Subsec. (a). Pub. L. 90–495, § 25(a), extended ad- vance construction authority to all the Federal-aid highway systems rather than just the Interstate Sys- tem but provided that anticipation of future apportion- ments by States should only be permitted for those years for which authorizations have been established by law. Subsec. (b). Pub. L. 90–495, § 25(b), struck out ref- erence to subsec. (b)(5) of section 104 of this title. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2021 AMENDMENT Amendment by Pub. L. 117–58 effective Oct. 1, 2021, see section 10003 of Pub. L. 117–58, set out as a note under section 101 of this title. EFFECTIVE DATE OF 1998 AMENDMENT Title IX of Pub. L. 105–206 effective simultaneously with enactment of Pub. L. 105–178 and to be treated as included in Pub. L. 105–178 at time of enactment, and provisions of Pub. L. 105–178, as in effect on day before July 22, 1998, that are amended by title IX of Pub. L. 105–206 to be treated as not enacted, see section 9016 of Pub. L. 105–206, set out as a note under section 101 of this title. EFFECTIVE DATE OF 1968 AMENDMENT Amendment by Pub. L. 90–495 effective Aug. 23, 1968, see section 37 of Pub. L. 90–495, set out as a note under section 101 of this title. § 116. Maintenance (a) DEFINITIONS.—In this section, the following definitions apply: (1) PREVENTIVE MAINTENANCE.—The term ‘‘preventive maintenance’’ includes pavement preservation programs and activities. (2) PAVEMENT PRESERVATION PROGRAMS AND ACTIVITIES.—The term ‘‘pavement preservation programs and activities’’ means programs and activities employing a network level, long- term strategy that enhances pavement per- formance by using an integrated, cost-effec- tive set of practices that extend pavement life, improve safety, and meet road user expecta- tions. (b) It shall be the duty of the State transpor- tation department or other direct recipient to maintain, or cause to be maintained, any project constructed under the provisions of this chapter or constructed under the provisions of prior Acts. (c) AGREEMENT.—In any State in which the State transportation department or other direct recipient is without legal authority to maintain a project described in subsection (b), the trans- portation department or direct recipient shall enter into a formal agreement with the appro- priate officials of the county or municipality in which the project is located to provide for the maintenance of the project. (d) If at any time the Secretary shall find that any project constructed under the provisions of this chapter, or constructed under the provi- sions of prior Acts, is not being properly main- tained, he shall call such fact to the attention of the State transportation department or other direct recipient. If, within ninety days after re- ceipt of such notice, such project has not been put in proper condition of maintenance, the Sec- retary shall withhold approval of further projects of all types in the State highway dis- trict, municipality, county, other political or administrative subdivision of the State, or the entire State in which such project is located, whichever the Secretary deems most appro- priate, until such project shall have been put in proper condition of maintenance. (e) PREVENTIVE MAINTENANCE.—A preventive maintenance activity shall be eligible for Fed- eral assistance under this title if the State dem- onstrates to the satisfaction of the Secretary that the activity is a cost-effective means of ex- tending the useful life of a Federal-aid highway. (Pub. L. 85–767, Aug. 27, 1958, 72 Stat. 896; Pub. L. 86–70, § 21(d)(2), (e)(3), June 25, 1959, 73 Stat. 145, 146; Pub. L. 90–495, § 26, Aug. 23, 1968, 82 Stat. 829; Pub. L. 95–599, title I, § 124(d), Nov. 6, 1978, 92 Stat. 2705; Pub. L. 97–424, title I, § 114, Jan. 6, 1983, 96 Stat. 2107; Pub. L. 100–17, title I, § 125(b)(2), Apr. 2, 1987, 101 Stat. 167; Pub. L. 104–59, title III, § 309, Nov. 28, 1995, 109 Stat. 582; Pub. L. 105–178, title I, § 1212(a)(2)(A)(i), June 9, 1998, 112 Stat. 193; Pub. L. 109–59, title I, § 1111(b)(1), Aug. 10, 2005, 119 Stat. 1171; Pub. L. 112–141, div. A, title I, § 1507, July 6, 2012, 126 Stat. 565.) Editorial Notes AMENDMENTS 2012—Subsec. (a). Pub. L. 112–141, § 1507(2), added sub- sec. (a). Former subsec. (a) redesignated (b). Subsec. (b). Pub. L. 112–141, § 1507(1), (3), redesignated subsec. (a) as (b), inserted ‘‘or other direct recipient’’