23 U.S.C. § 201 — Federal lands and tribal transportation

Page 312 TITLE 23—HIGHWAYS § 201 Sec. 210. Defense access roads. [211 to 216. Repealed.] 217. Bicycle transportation and pedestrian walk- ways. 218. Alaska Highway. [219. Repealed.] Editorial Notes AMENDMENTS 2021—Pub. L. 117–58, div. A, title I, § 11119(b)(1), Nov. 15, 2021, 135 Stat. 497, added item 208. 2015—Pub. L. 114–94, div. A, title I, §§ 1109(c)(6)(B), 1121(b), Dec. 4, 2015, 129 Stat. 1344, 1368, added item 207 and struck out item 213 ‘‘Transportation alternatives’’. 2012—Pub. L. 112–141, div. A, title I, §§ 1114(b)(2)(B), 1119(c)(1), 1122(b), 1519(c)(1)(B), July 6, 2012, 126 Stat. 468, 491, 497, 575, substituted ‘‘Federal lands and tribal transportation programs’’ for ‘‘Authorizations’’ in item 201, ‘‘Tribal transportation program’’ for ‘‘Allocations’’ in item 202, ‘‘Federal lands transportation program’’ for ‘‘Availability of funds’’ in item 203, and ‘‘Federal lands access program’’ for ‘‘Federal lands highways program’’ in item 204, struck out item 212 ‘‘Inter-Amer- ican Highway’’, added item 213, and struck out items 214 ‘‘Public lands development roads and trails’’, 215 ‘‘Territorial highway program’’, and 216 ‘‘Darien Gap Highway’’. 2005—Pub. L. 109–59, title I, § 1118(b)(3), Aug. 10, 2005, 119 Stat. 1181, substituted ‘‘Territorial highway pro- gram’’ for ‘‘Territories highway development program’’ in item 215. 1998—Pub. L. 105–178, title I, § 1112(b), June 9, 1998, 112 Stat. 151, substituted ‘‘Recreational trails program’’ for ‘‘Repealed’’ in item 206. 1987—Pub. L. 100–17, title I, § 133(e)(1), Apr. 2, 1987, 101 Stat. 173, struck out items 211 ‘‘Timber access road hearings’’, 213 ‘‘Rama Road’’, and 219 ‘‘Safer of off-sys- tem roads’’. 1983—Pub. L. 97–424, title I, § 126(e)(1), Jan. 6, 1983, 96 Stat. 2115, substituted ‘‘Allocations’’ for ‘‘Apportion- ment for allocation’’ in item 202. Pub. L. 97–424, title I, § 126(e)(2), Jan. 6, 1983, 96 Stat. 2115, substituted ‘‘Federal lands highways programs’’ for ‘‘Forest highways’’ in item 204. Pub. L. 97–424, title I, § 126(e)(3), Jan. 6, 1983, 96 Stat. 2116, substituted ‘‘Repealed’’ in items 206 through 209 which read ‘‘Park roads and trails’’, ‘‘Parkways’’, ‘‘In- dian reservation roads’’, ‘‘Public lands highways’’, re- spectively. 1976—Pub. L. 94–280, title I, § 135(b), May 5, 1976, 90 Stat. 442, substituted item 219 ‘‘Safer of off-system roads’’ for ‘‘Off-system roads’’. 1975—Pub. L. 93–643, § 122(b), Jan. 4, 1975, 88 Stat. 2290, added item 219. 1973—Pub. L. 93–87, title I, §§ 124(b), 127(a)(2), Aug. 13, 1973, 87 Stat. 262, 264, added items 217 and 218. 1970—Pub. L. 91–605, title I, §§ 112(b), 113(b), Dec. 31, 1970, 84 Stat. 1721, 1722, added items 215 and 216. 1962—Pub. L. 87–866, § 6(c), Oct. 23, 1962, 76 Stat. 1147, added item 214. § 201. Federal lands and tribal transportation programs (a) PURPOSE.—Recognizing the need for all public Federal and tribal transportation facili- ties to be treated under uniform policies similar to the policies that apply to Federal-aid high- ways and other public transportation facilities, the Secretary of Transportation, in collabora- tion with the Secretaries of the appropriate Fed- eral land management agencies, shall coordinate a uniform policy for all public Federal and tribal transportation facilities that shall apply to Fed- eral lands transportation facilities, tribal trans- portation facilities, and Federal lands access transportation facilities. (b) AVAILABILITY OF FUNDS.— (1) AVAILABILITY.—Funds authorized for the tribal transportation program, the Federal lands transportation program, and the Federal lands access program shall be available for contract upon apportionment, or on October 1 of the fiscal year for which the funds were au- thorized if no apportionment is required. (2) AMOUNT REMAINING.—Any amount re- maining unexpended for a period of 3 years after the close of the fiscal year for which the funds were authorized shall lapse. (3) OBLIGATIONS.—The Secretary of the de- partment responsible for the administration of funds under this subsection may incur obliga- tions, approve projects, and enter into con- tracts under such authorizations, which shall be considered to be contractual obligations of the United States for the payment of the cost thereof, the funds of which shall be considered to have been expended when obligated. (4) EXPENDITURE.— (A) IN GENERAL.—Any funds authorized for any fiscal year after the date of enactment of this section under the Federal lands transportation program, the Federal lands access program, and the tribal transpor- tation program shall be considered to have been expended if a sum equal to the total of the sums authorized for the fiscal year and previous fiscal years have been obligated. (B) CREDITED FUNDS.—Any funds described in subparagraph (A) that are released by payment of final voucher or modification of project authorizations shall be— (i) credited to the balance of unobligated authorizations; and (ii) immediately available for expendi- ture. (5) APPLICABILITY.—This section shall not apply to funds authorized before the date of enactment of this paragraph. (6) CONTRACTUAL OBLIGATION.— (A) IN GENERAL.—Notwithstanding any other provision of law (including regula- tions), the authorization by the Secretary, or the Secretary of the appropriate Federal land management agency if the agency is the contracting office, of engineering and re- lated work for the development, design, and acquisition associated with a construction project, whether performed by contract or agreement authorized by law, or the ap- proval by the Secretary of plans, specifica- tions, and estimates for construction of a project, shall be considered to constitute a contractual obligation of the Federal Gov- ernment to pay the total eligible cost of— (i) any project funded under this title; and (ii) any project funded pursuant to agreements authorized by this title or any other title. (B) EFFECT.—Nothing in this paragraph— (i) affects the application of the Federal share associated with the project being un- dertaken under this section; or (ii) modifies the point of obligation asso- ciated with Federal salaries and expenses. (7) FEDERAL SHARE.— Page 313 TITLE 23—HIGHWAYS § 201 1 So in original. (A) TRIBAL AND FEDERAL LANDS TRANSPOR- TATION PROGRAM.—The Federal share of the cost of a project carried out under the Fed- eral lands transportation program or the tribal transportation program shall be 100 percent. (B) FEDERAL LANDS ACCESS PROGRAM.—The Federal share of the cost of a project carried out under the Federal lands access program shall be be 1 up to 100 percent. (c) TRANSPORTATION PLANNING.— (1) TRANSPORTATION PLANNING PROCEDURES.— In consultation with the Secretary of each ap- propriate Federal land management agency, the Secretary shall implement transportation planning procedures for Federal lands and tribal transportation facilities that are con- sistent with the planning processes required under sections 134 and 135. (2) APPROVAL OF TRANSPORTATION IMPROVE- MENT PROGRAM.—The transportation improve- ment program developed as a part of the transportation planning process under this section shall be approved by the Secretary. (3) INCLUSION IN OTHER PLANS.—Each region- ally significant tribal transportation program, Federal lands transportation program, and Federal lands access program project shall be— (A) developed in cooperation with State and metropolitan planning organizations; and (B) included in appropriate tribal transpor- tation program plans, Federal lands trans- portation program plans, Federal lands ac- cess program plans, State and metropolitan plans, and transportation improvement pro- grams. (4) INCLUSION IN STATE PROGRAMS.—The ap- proved tribal transportation program, Federal lands transportation program, and Federal lands access program transportation improve- ment programs shall be included in appro- priate State and metropolitan planning orga- nization plans and programs without further action on the transportation improvement program. (5) ASSET MANAGEMENT.—The Secretary and the Secretary of each appropriate Federal land management agency shall, to the extent ap- propriate, implement safety, bridge, pave- ment, and congestion management systems for facilities funded under the tribal transpor- tation program and the Federal lands trans- portation program in support of asset manage- ment. (6) DATA COLLECTION.— (A) DATA COLLECTION.— (i) IN GENERAL.—The Secretaries of the appropriate Federal land management agencies shall collect and report data nec- essary to implement the Federal lands transportation program, the Federal lands access program, and the tribal transpor- tation program. (ii) REQUIREMENT.—Data collected to im- plement the tribal transportation program shall be in accordance with the Indian Self-Determination and Education Assist- ance Act (25 U.S.C. 5301 et seq.). (iii) INCLUSIONS.—Data collected under this paragraph includes— (I) inventory and condition informa- tion on Federal lands transportation fa- cilities and tribal transportation facili- ties; and (II) bridge inspection and inventory in- formation on any Federal bridge open to the public. (B) STANDARDS.—The Secretary, in coordi- nation with the Secretaries of the appro- priate Federal land management agencies, shall define the collection and reporting data standards. (C) TRIBAL DATA COLLECTION.—In addition to the data to be collected under subpara- graph (A), not later than 90 days after the last day of each fiscal year, any entity car- rying out a project under the tribal trans- portation program under section 202 shall submit to the Secretary and the Secretary of the Interior, based on obligations and ex- penditures under the tribal transportation program during the preceding fiscal year, the following data: (i) The names of projects and activities carried out by the entity under the tribal transportation program during the pre- ceding fiscal year. (ii) A description of the projects and ac- tivities identified under clause (i). (iii) The current status of the projects and activities identified under clause (i). (iv) An estimate of the number of jobs created and the number of jobs retained by the projects and activities identified under clause (i). (7) COOPERATIVE RESEARCH AND TECHNOLOGY DEPLOYMENT.—The Secretary may conduct co- operative research and technology deployment in coordination with Federal land manage- ment agencies, as determined appropriate by the Secretary. (8) FUNDING.— (A) IN GENERAL.—To carry out the activi- ties described in this subsection for Federal lands transportation facilities, Federal lands access transportation facilities, and other federally owned roads open to public travel (as that term is defined in section 125(e)), the Secretary shall for each fiscal year com- bine and use not greater than 20 percent of the funds authorized for programs under sec- tions 203 and 204. (B) OTHER ACTIVITIES.—In addition to the activities described in subparagraph (A), funds described under that subparagraph may be used for— (i) bridge inspections on any federally owned bridge even if that bridge is not in- cluded on the inventory described under section 203; and (ii) transportation planning activities carried out by Federal land management agencies eligible for funding under this chapter. (d) REIMBURSABLE AGREEMENTS.—In carrying out work under reimbursable agreements with Page 314 TITLE 23—HIGHWAYS § 201 any State, local, or tribal government under this title, the Secretary— (1) may, without regard to any other provi- sion of law (including regulations), record ob- ligations against accounts receivable from the entity; and (2) shall credit amounts received from the entity to the appropriate account, which shall occur not later than 90 days after the date of the original request by the Secretary for pay- ment. (e) TRANSFERS.— (1) IN GENERAL.—To enable the efficient use of funds made available for the Federal lands transportation program and the Federal lands access program, the funds may be transferred by the Secretary within and between each pro- gram with the concurrence of, as appro- priate— (A) the Secretary; (B) the affected Secretaries of the respec- tive Federal land management agencies; (C) State departments of transportation; and (D) local government agencies. (2) CREDIT.—The funds described in para- graph (1) shall be credited back to the loaning entity with funds that are currently available for obligation at the time of the credit. (f) ALTERNATIVE CONTRACTING METHODS.— (1) IN GENERAL.—Notwithstanding any other provision of law (including the Federal Acqui- sition Regulation), a contracting method available to a State under this title may be used by the Secretary, on behalf of— (A) a Federal land management agency, in using any funds pursuant to section 203, 204, or 308; (B) a Federal land management agency, in using any funds pursuant to section 1535 of title 31 for any of the eligible uses described in sections 203(a)(1) and 204(a)(1) and para- graphs (1) and (2) of section 308(a); or (C) a Tribal government, in using funds pursuant to section 202(b)(7)(D). (2) METHODS DESCRIBED.—The contracting methods referred to in paragraph (1) shall in- clude, at a minimum— (A) project bundling; (B) bridge bundling; (C) design-build contracting; (D) 2-phase contracting; (E) long-term concession agreements; and (F) any method tested, or that could be tested, under an experimental program re- lating to contracting methods carried out by the Secretary. (3) EFFECT.—Nothing in this subsection— (A) affects the application of the Federal share for the project carried out with a con- tracting method under this subsection; or (B) modifies the point of obligation of Fed- eral salaries and expenses. (Added Pub. L. 112–141, div. A, title I, § 1119(a), July 6, 2012, 126 Stat. 473; amended Pub. L. 114–94, div. A, title I, §§ 1117(a), 1120, Dec. 4, 2015, 129 Stat. 1356, 1358; Pub. L. 117–58, div. A, title I, §§ 11113(a), 11305(a), 11525(l), Nov. 15, 2021, 135 Stat. 479, 531, 607.) Editorial Notes REFERENCES IN TEXT The date of enactment of this section and the date of enactment of this paragraph, referred to in subsec. (b)(4)(A), (5), is the date of enactment of Pub. L. 112–141, which was approved July 6, 2012. The Indian Self-Determination and Education Assist- ance Act, referred to in subsec. (c)(6)(A)(ii), is Pub. L. 93–638, Jan. 4, 1975, 88 Stat. 2203, which is classified principally to chapter 46 (§ 5301 et seq.) of Title 25, Indi- ans. For complete classification of this Act to the Code, see Short Title note set out under section 5301 of Title 25 and Tables. PRIOR PROVISIONS A prior section 201, Pub. L. 85–767, Aug. 27, 1958, 72 Stat. 906; Pub. L. 97–424, title I, § 126(f), Jan. 6, 1983, 96 Stat. 2116; Pub. L. 105–178, title I, § 1115(e)(1), June 9, 1998, 112 Stat. 158, related to authorizations, prior to re- peal by Pub. L. 112–141, div. A, title I, § 1119(a), July 6, 2012, 126 Stat. 473. AMENDMENTS 2021—Subsec. (b)(7)(B). Pub. L. 117–58, § 11113(a)(1), substituted ‘‘be up to 100 percent’’ for ‘‘determined in accordance with section 120’’. Subsec. (c)(6)(A)(ii). Pub. L. 117–58, § 11525(l), sub- stituted ‘‘(25 U.S.C. 5301 et seq.)’’ for ‘‘(25 U.S.C. 450 et seq.)’’. Subsec. (c)(8)(A). Pub. L. 117–58, § 11113(a)(2), sub- stituted ‘‘20 percent’’ for ‘‘5 percent’’. Subsec. (f). Pub. L. 117–58, § 11305(a), added subsec. (f). 2015—Subsec. (c)(6)(A). Pub. L. 114–94, § 1120(1), in- serted cl. (i) designation and heading, substituted pe- riod for ‘‘in accordance with the Indian Self-Deter- mination and Education Assistance Act (25 U.S.C. 450 et seq.), including—’’, added cl. (ii) and introductory provisions of cl. (iii), redesignated former cls. (i) and (ii). as subcls. (I) and (II) of cl. (iii), respectively, and realigned margins. Subsec. (c)(6)(C). Pub. L. 114–94, § 1117(a), added sub- par. (C). Subsec. (c)(7), (8). Pub. L. 114–94, § 1120(2), added pars. (7) and (8) and struck out former par. (7). Prior to amendment, text of par. (7) read as follows: ‘‘To imple- ment the activities described in this subsection, includ- ing direct support of transportation planning activities among Federal land management agencies, the Sec- retary may use not more than 5 percent for each fiscal year of the funds authorized for programs under sec- tions 203 and 204.’’ 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 2015 AMENDMENT Amendment by Pub. L. 114–94 effective Oct. 1, 2015, see section 1003 of Pub. L. 114–94, set out as a note under section 5313 of Title 5, Government Organization and Employees. EFFECTIVE DATE Section effective Oct. 1, 2012, see section 3(a) of Pub. L. 112–141, set out as an Effective and Termination Dates of 2012 Amendment note under section 101 of this title. USE OF ALTERNATIVE CONTRACTING METHODS Pub. L. 117–58, div. A, title I, § 11305(c), Nov. 15, 2021, 135 Stat. 532, provided that: ‘‘In carrying out an alter- native contracting method under section 201(f) or 308(a)(4) of title 23, United States Code, the Secretary [of Transportation] shall— Page 315 TITLE 23—HIGHWAYS § 202 ‘‘(1) in consultation with the applicable Federal land management agencies, establish clear proce- dures that are— ‘‘(A) applicable to the alternative contracting method; and ‘‘(B) to the maximum extent practicable, con- sistent with the requirements applicable to Federal procurement transactions; ‘‘(2) solicit input on the use of the alternative con- tracting method from the affected industry prior to using the method; and ‘‘(3) analyze and prepare an evaluation of the use of the alternative contracting method.’’ NATIONALLY SIGNIFICANT FEDERAL LANDS AND TRIBAL PROJECTS PROGRAM Pub. L. 114–94, div. A, title I, § 1123, Dec. 4, 2015, 129 Stat. 1370, as amended by Pub. L. 117–58, div. A, title I, § 11127, Nov. 15, 2021, 135 Stat. 507, provided that: ‘‘(a) PURPOSE.—The Secretary [of Transportation] shall establish a nationally significant Federal lands and tribal projects program (referred to in this section as the ‘program’) to provide funding to construct, re- construct, or rehabilitate nationally significant Fed- eral lands and tribal transportation projects. ‘‘(b) ELIGIBLE APPLICANTS.— ‘‘(1) IN GENERAL.—Except as provided in paragraph (2), entities eligible to receive funds under sections 201, 202, 203, and 204 of title 23, United States Code, may apply for funding under the program. ‘‘(2) SPECIAL RULE.—A State, county, or unit of local government may only apply for funding under the program if sponsored by an eligible Federal land management agency or Indian tribe. ‘‘(c) ELIGIBLE PROJECTS.—An eligible project under the program shall be a single continuous project— ‘‘(1) on a Federal lands transportation facility, a Federal lands access transportation facility, or a tribal transportation facility (as those terms are de- fined in section 101 of title 23, United States Code), except that such facility is not required to be in- cluded in an inventory described in section 202 or 203 of such title; ‘‘(2) for which completion of activities required under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) has been demonstrated through— ‘‘(A) a record of decision with respect to the project; ‘‘(B) a finding that the project has no significant impact; or ‘‘(C) a determination that the project is categori- cally excluded; and ‘‘(3) having an estimated cost, based on the results of preliminary engineering, equal to or exceeding $12,500,000. ‘‘(d) ELIGIBLE ACTIVITIES.— ‘‘(1) IN GENERAL.—Subject to paragraph (2), an eligi- ble applicant receiving funds under the program may only use the funds for construction, reconstruction, and rehabilitation activities. ‘‘(2) INELIGIBLE ACTIVITIES.—An eligible applicant may not use funds received under the program for ac- tivities relating to project design. ‘‘(e) APPLICATIONS.—Eligible applicants shall submit to the Secretary [of Transportation] an application at such time, in such form, and containing such informa- tion as the Secretary may require. ‘‘(f) SELECTION CRITERIA.—In selecting a project to re- ceive funds under the program, the Secretary shall con- sider the extent to which the project— ‘‘(1) furthers the goals of the Department, including state of good repair, economic competitiveness, qual- ity of life, and safety; ‘‘(2) improves the condition of critical transpor- tation facilities, including multimodal facilities; ‘‘(3) needs construction, reconstruction, or rehabili- tation; ‘‘(4) has costs matched by funds that are not pro- vided under this section, with projects with a greater percentage of other sources of matching funds ranked ahead of lesser matches; ‘‘(5) is included in or eligible for inclusion in the National Register of Historic Places; ‘‘(6) uses new technologies and innovations that en- hance the efficiency of the project; ‘‘(7) is supported by funds, other than the funds re- ceived under the program, to construct, maintain, and operate the facility; ‘‘(8) spans 2 or more States; and ‘‘(9) serves land owned by multiple Federal agencies or Indian tribes. ‘‘(g) COST SHARE.— ‘‘(1) FEDERAL SHARE.— ‘‘(A) IN GENERAL.—Except as provided in subpara- graph (B), the Federal share of the cost of a project shall be up to 90 percent. ‘‘(B) TRIBAL PROJECTS.—In the case of a project on a tribal transportation facility (as defined in sec- tion 101(a) of title 23, United States Code), the Fed- eral share of the cost of the project shall be 100 per- cent. ‘‘(2) NON-FEDERAL SHARE.—Notwithstanding any other provision of law, any Federal funds may be used to pay the non-Federal share of the cost of a project carried out under this section. ‘‘(h) USE OF FUNDS.— ‘‘(1) IN GENERAL.—For each fiscal year, of the amounts made available to carry out this section— ‘‘(A) 50 percent shall be used for eligible projects on Federal lands transportation facilities and Fed- eral lands access transportation facilities (as those terms are defined in section 101(a) of title 23, United States Code); and ‘‘(B) 50 percent shall be used for eligible projects on tribal transportation facilities (as defined in sec- tion 101(a) of title 23, United States Code). ‘‘(2) REQUIREMENT.—Not less than 1 eligible project carried out using the amount described in paragraph (1)(A) shall be in a unit of the National Park System with not less than 3,000,000 annual visitors. ‘‘(3) AVAILABILITY.—Amounts made available to carry out this section shall remain available for a pe- riod of 3 fiscal years following the fiscal year for which the amounts are appropriated.’’ § 202. Tribal transportation program (a) USE OF FUNDS.— (1) IN GENERAL.—Funds made available under the tribal transportation program shall be used by the Secretary of Transportation and the Secretary of the Interior to pay the costs of— (A)(i) transportation planning, research, maintenance, engineering, rehabilitation, restoration, construction, and reconstruc- tion of tribal transportation facilities; (ii) adjacent vehicular parking areas; (iii) interpretive signage; (iv) acquisition of necessary scenic ease- ments and scenic or historic sites; (v) provisions for pedestrians and bicycles; (vi) environmental mitigation in or adja- cent to tribal land— (I) to improve public safety and reduce vehicle-caused wildlife mortality while maintaining habitat connectivity; and (II) to mitigate the damage to wildlife, aquatic organism passage, habitat, and ecosystem connectivity, including the costs of constructing, maintaining, replac- ing, or removing culverts and bridges, as appropriate; (vii) construction and reconstruction of roadside rest areas, including sanitary and water facilities; and