23 U.S.C. § 109 — Standards

Page 75 TITLE 23—HIGHWAYS § 109 1973—Subsec. (a). Pub. L. 93–87, § 113(a), substituted ‘‘ten’’ for ‘‘seven’’ years in last sentence. Subsec. (c)(3). Pub. L. 93–87, § 113(b), substituted ‘‘ten’’ for ‘‘seven’’ years in first sentence. 1968—Subsec. (b). Pub. L. 90–495, § 7(a), substituted ‘‘subsection (a) of this section’’ for ‘‘this section’’. Subsec. (c). Pub. L. 90–495, § 7(b), added subsec. (c). 1959—Subsec. (a). Pub. L. 86–35 increased from five to seven years the period in which actual construction shall commence on rights-of-way acquired in anticipa- tion of such construction. 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 OF 2012 AMENDMENT Amendment by Pub. L. 112–141 effective Oct. 1, 2012, see section 3(a) of Pub. L. 112–141, set out as an Effec- tive and Termination Dates of 2012 Amendment note under section 101 of this title. EFFECTIVE DATE OF 1991 AMENDMENT Amendment by Pub. 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 Pub. L. 102–240, set out as a note under section 104 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. TRANSITION PROVISIONS Pub. L. 105–178, title I, § 1211(e)(2), June 9, 1998, 112 Stat. 188, provided that: ‘‘(A) IN GENERAL.—Funds advanced to a State by the Secretary from the right-of-way revolving fund estab- lished by section 108(c) of title 23, United States Code, prior to the date of enactment of this Act [June 9, 1998] shall remain available to the State for use on the projects for which the funds were advanced for a period of 20 years from the date on which the funds were ad- vanced. ‘‘(B) CREDIT TO HIGHWAY TRUST FUND.—With respect to a project for which funds have been advanced from the right-of-way revolving fund, upon the termination of the 20-year period referred to in subparagraph (A), when actual construction is commenced, or upon ap- proval by the Secretary of the plans, specifications, and estimates for the actual construction of the project on the right-of-way, whichever occurs first— ‘‘(i) the Highway Trust Fund (other than the Mass Transit Account) shall be credited with an amount equal to the Federal share of the funds advanced, as provided in section 120 of title 23, United States Code, out of any Federal-aid highway funds apportioned to the State in which the project is located and avail- able for obligation for projects of the type funded; and ‘‘(ii) the State shall reimburse the Secretary in an amount equal to the non-Federal share of the funds advanced for deposit in, and credit to, the Highway Trust Fund (other than the Mass Transit Account).’’ PRESERVATION OF TRANSPORTATION CORRIDORS REPORT Pub. L. 102–240, title I, § 1017(c), Dec. 18, 1991, 105 Stat. 1948, provided that: ‘‘The Secretary, in consultation with the States, shall report to Congress within 2 years after the date of the enactment of this Act [Dec. 18, 1991], a national list of the rights-of-way identified by the metropolitan planning organizations and the States (under sections 134 and 135 of title 23, United States Code), including the total mileage involved, an esti- mate of the total costs, and a strategy for preventing further loss of rights-of-way including the desirability of creating a transportation right-of-way land bank to preserve vital corridors.’’ AUTHORIZATION OF APPROPRIATIONS TO RIGHT-OF-WAY REVOLVING FUND; APPORTIONMENT; REVERSION OF AMOUNTS NOT ADVANCED OR OBLIGATED Pub. L. 90–495, § 7(c)–(e), Aug. 23, 1968, 82 Stat. 819, pro- vided that $100,000,000 for the fiscal year ending June 30, 1970, $100,000,000 for the fiscal year ending June 30, 1971, and $100,000,000 for the fiscal year ending June 30, 1972, be transferred from the highway trust fund to the right-of-way revolving fund established by subsec. (c) of this section, authorized the Secretary to apportion these funds and required that funds apportioned to a State remain available for obligation for advances until Oct. 1 of the fiscal year in which the apportion- ment was made and any funds not advanced or obli- gated by such date revert to the right-of-way revolving fund for distribution to other States. STUDY OF ADVANCE ACQUISITION OF RIGHTS-OF-WAY Pub. L. 89–574, § 10, Sept. 13, 1966, 80 Stat. 769, as amended by Pub. L. 97–449, § 2(a), Jan. 12, 1983, 96 Stat. 2439, directed the Secretary to make a full and com- plete investigation and study of the advance acquisi- tion of rights-of-way for future construction of high- ways on the Federal-aid highway systems, with par- ticular reference to the provision of adequate time for the removal and disposal of improvements located on rights-of-way and the relocation of affected individuals, businesses, institutions, and organizations, the tax sta- tus of such property after acquisition and before its use for highway purposes, and the methods for financing advance right-of-way acquisition by both the State governments and the Federal Government, including the possible creation of revolving funds for such pur- pose. The Secretary was required to submit a report of results of such study to Congress not later than July 1, 1967, together with his recommendations. INCREASED LIMITATION PERIOD APPLICABLE TO CERTAIN CONTRACTS Pub. L. 86–35, § 2, May 29, 1959, 73 Stat. 63, provided that agreements entered into before May 29, 1959 by the Secretary of Commerce and a State highway depart- ment under authority of section 110(a) of the Federal- Aid Highway Act of 1956, or section 108(a) of title 23 of the United States Code shall be deemed to provide for actual construction of a road on such rights-of-way within a period of seven years following the fiscal year in which such request was made. § 109. Standards (a) IN GENERAL.—The Secretary shall ensure that the plans and specifications for each pro- posed highway project under this chapter pro- vide for a facility that will— (1) adequately serve the existing and planned future traffic of the highway in a manner that is conducive to safety, durability, and econ- omy of maintenance; and (2) be designed and constructed in accord- ance with criteria best suited to accomplish the objectives described in paragraph (1) and to conform to the particular needs of each lo- cality. (b) The geometric and construction standards to be adopted for the Interstate System shall be Page 76 TITLE 23—HIGHWAYS § 109 those approved by the Secretary in cooperation with the State transportation departments. Such standards, as applied to each actual con- struction project, shall be adequate to enable such project to accommodate the types and vol- umes of traffic anticipated for such project for the twenty-year period commencing on the date of approval by the Secretary, under section 106 of this title, of the plans, specifications, and es- timates for actual construction of such project. Such standards shall in all cases provide for at least four lanes of traffic. The right-of-way width of the Interstate System shall be ade- quate to permit construction of projects on the Interstate System to such standards. The Sec- retary shall apply such standards uniformly throughout all the States. (c) DESIGN CRITERIA FOR NATIONAL HIGHWAY SYSTEM.— (1) IN GENERAL.—A design for new construc- tion, reconstruction, resurfacing (except for maintenance resurfacing), restoration, or re- habilitation of a highway on the National Highway System (other than a highway also on the Interstate System) shall consider, in addition to the criteria described in subsection (a)— (A) the constructed and natural environ- ment of the area; (B) the environmental, scenic, aesthetic, historic, community, and preservation im- pacts of the activity; (C) cost savings by utilizing flexibility that exists in current design guidance and regulations; and (D) access for other modes of transpor- tation. (2) DEVELOPMENT OF CRITERIA.—The Sec- retary, in cooperation with State transpor- tation departments, may develop criteria to implement paragraph (1). In developing cri- teria under this paragraph, the Secretary shall consider— (A) the results of the committee process of the American Association of State Highway and Transportation Officials as used in adopting and publishing ‘‘A Policy on Geo- metric Design of Highways and Streets’’, in- cluding comments submitted by interested parties as part of such process; (B) the publication entitled ‘‘Flexibility in Highway Design’’ of the Federal Highway Administration; (C) ‘‘Eight Characteristics of Process to Yield Excellence and the Seven Qualities of Excellence in Transportation Design’’ devel- oped by the conference held during 1998 enti- tled ‘‘Thinking Beyond the Pavement Na- tional Workshop on Integrating Highway De- velopment with Communities and the Envi- ronment while Maintaining Safety and Per- formance’’; (D) the publication entitled ‘‘Highway Safety Manual’’ of the American Association of State Highway and Transportation Offi- cials; (E) the publication entitled ‘‘Urban Street Design Guide’’ of the National Association of City Transportation Officials; (F) the publication of the Federal Highway Administration entitled ‘‘Wildlife Crossing Structure Handbook: Design and Evaluation in North America’’ and dated March 2011; and (G) any other material that the Secretary determines to be appropriate. (d) MANUAL ON UNIFORM TRAFFIC CONTROL DE- VICES.— (1) IN GENERAL.—On any highway project in which Federal funds hereafter participate, or on any such project constructed since Decem- ber 20, 1944, the location, form and character of informational, regulatory and warning signs, curb and pavement or other markings, and traffic signals installed or placed by any public authority or other agency, shall be sub- ject to the approval of the State transpor- tation department with the concurrence of the Secretary, who is directed to concur only in such installations as will promote the safety, inclusion, and mobility of all users and effi- cient utilization of the highways. (2) UPDATES.—Not later than 18 months after the date of enactment of the Surface Trans- portation Reauthorization Act of 2021 and not less frequently than every 4 years thereafter, the Secretary shall update the Manual on Uni- form Traffic Control Devices. (e) INSTALLATION OF SAFETY DEVICES.— (1) HIGHWAY AND RAILROAD GRADE CROSSINGS AND DRAWBRIDGES.—No funds shall be approved for expenditure on any Federal-aid highway, or highway affected under chapter 2 of this title, unless proper safety protective devices complying with safety standards determined by the Secretary at that time as being ade- quate shall be installed or be in operation at any highway and railroad grade crossing or drawbridge on that portion of the highway with respect to which such expenditures are to be made. (2) TEMPORARY TRAFFIC CONTROL DEVICES.— No funds shall be approved for expenditure on any Federal-aid highway, or highway affected under chapter 2, unless proper temporary traf- fic control devices to improve safety in work zones will be installed and maintained during construction, utility, and maintenance oper- ations on that portion of the highway with re- spect to which such expenditures are to be made. Installation and maintenance of the de- vices shall be in accordance with the Manual on Uniform Traffic Control Devices. (f) The Secretary shall not, as a condition precedent to his approval under section 106 of this title, require any State to acquire title to, or control of, any marginal land along the pro- posed highway in addition to that reasonably necessary for road surfaces, median strips, bike- ways, pedestrian walkways, gutters, ditches, and side slopes, and of sufficient width to provide service roads for adjacent property to permit safe access at controlled locations in order to expedite traffic, promote safety, and minimize roadside parking. (g) Not later than January 30, 1971, the Sec- retary shall issue guidelines for minimizing pos- sible soil erosion from highway construction. Such guidelines shall apply to all proposed projects with respect to which plans, specifica- tions, and estimates are approved by the Sec- retary after the issuance of such guidelines. Page 77 TITLE 23—HIGHWAYS § 109 (h) Not later than July 1, 1972, the Secretary, after consultation with appropriate Federal and State officials, shall submit to Congress, and not later than 90 days after such submission, promulgate guidelines designed to assure that possible adverse economic, social, and environ- mental effects relating to any proposed project on any Federal-aid system have been fully con- sidered in developing such project, and that the final decisions on the project are made in the best overall public interest, taking into consid- eration the need for fast, safe and efficient transportation, public services, and the costs of eliminating or minimizing such adverse effects and the following: (1) air, noise, and water pollution; (2) destruction or disruption of man-made and natural resources, aesthetic values, com- munity cohesion and the availability of public facilities and services; (3) adverse employment effects, and tax and property value losses; (4) injurious displacement of people, busi- nesses and farms; and (5) disruption of desirable community and regional growth. Such guidelines shall apply to all proposed proj- ects with respect to which plans, specifications, and estimates are approved by the Secretary after the issuance of such guidelines. (i) The Secretary, after consultation with ap- propriate Federal, State, and local officials, shall develop and promulgate standards for highway noise levels compatible with different land uses and after July 1, 1972, shall not ap- prove plans and specifications for any proposed project on any Federal-aid system for which lo- cation approval has not yet been secured unless he determines that such plans and specifications include adequate measures to implement the ap- propriate noise level standards. The Secretary, after consultation with the Administrator of the Environmental Protection Agency and appro- priate Federal, State, and local officials, may promulgate standards for the control of highway noise levels for highways on any Federal-aid system for which project approval has been se- cured prior to July 1, 1972. The Secretary may approve any project on a Federal-aid system to which noise-level standards are made applicable under the preceding sentence for the purpose of carrying out such standards. Such project may include, but is not limited to, the acquisition of additional rights-of-way, the construction of physical barriers, and landscaping. Sums appor- tioned for the Federal-aid system on which such project will be located shall be available to fi- nance the Federal share of such project. Such project shall be deemed a highway project for all purposes of this title. (j) The Secretary, after consultation with the Administrator of the Environmental Protection Agency, shall develop and promulgate guidelines to assure that highways constructed pursuant to this title are consistent with any approved plan for— (1) the implementation of a national ambi- ent air quality standard for each pollutant for which an area is designated as a nonattain- ment area under section 107(d) of the Clean Air Act (42 U.S.C. 7407(d)); or (2) the maintenance of a national ambient air quality standard in an area that was des- ignated as a nonattainment area but that was later redesignated by the Administrator as an attainment area for the standard and that is required to develop a maintenance plan under section 175A of the Clean Air Act (42 U.S.C. 7505a). (k) The Secretary shall not approve any proj- ect involving approaches to a bridge under this title, if such project and bridge will signifi- cantly affect the traffic volume and the highway system of a contiguous State without first tak- ing into full consideration the views of that State. (l)(1) In determining whether any right-of-way on any Federal-aid highway should be used for accommodating any utility facility, the Sec- retary shall— (A) first ascertain the effect such use will have on highway and traffic safety, since in no case shall any use be authorized or otherwise permitted, under this or any other provision of law, which would adversely affect safety; (B) evaluate the direct and indirect environ- mental and economic effects of any loss of pro- ductive agricultural land or any impairment of the productivity of any agricultural land which would result from the disapproval of the use of such right-of-way for the accommoda- tion of such utility facility; and (C) consider such environmental and eco- nomic effects together with any interference with or impairment of the use of the highway in such right-of-way which would result from the use of such right-of-way for the accommo- dation of such utility facility. (2) For the purpose of this subsection— (A) the term ‘‘utility facility’’ means any privately, publicly, or cooperatively owned line, facility, or system for producing, trans- mitting, or distributing communications, power, electricity, light, heat, gas, oil, crude products, water, steam, waste, storm water not connected with highway drainage, or any other similar commodity, including any fire or police signal system or street lighting system, which directly or indirectly serves the public; and (B) the term ‘‘right-of-way’’ means any real property, or interest therein, acquired, dedi- cated, or reserved for the construction, oper- ation, and maintenance of a highway. (m) PROTECTION OF NONMOTORIZED TRANSPOR- TATION TRAFFIC.—The Secretary shall not ap- prove any project or take any regulatory action under this title that will result in the severance of an existing major route or have significant adverse impact on the safety for nonmotorized transportation traffic and light motorcycles, un- less such project or regulatory action provides for a reasonable alternate route or such a route exists. (n) It is the intent of Congress that any project for resurfacing, restoring, or rehabili- tating any highway, other than a highway ac- cess to which is fully controlled, in which Fed- eral funds participate shall be constructed in ac- cordance with standards to preserve and extend the service life of highways and enhance high- way safety. Page 78 TITLE 23—HIGHWAYS § 109 1 Designations so in original. (o) COMPLIANCE WITH STATE LAWS FOR NON- NHS PROJECTS.— (A) 1 IN GENERAL.—Projects (other than high- way projects on the National Highway Sys- tem) shall be designed, constructed, operated, and maintained in accordance with State laws, regulations, directives, safety standards, de- sign standards, and construction standards. (B) 1 LOCAL JURISDICTIONS.—Notwithstanding subparagraph (A), a local jurisdiction may use a roadway design guide recognized by the Fed- eral Highway Administration and adopted by the local jurisdiction that is different from the roadway design guide used by the State in which the local jurisdiction is located for the design of projects on all roadways under the ownership of the local jurisdiction (other than a highway on the National Highway System) for which the local jurisdiction is the project sponsor, provided that the design complies with all other applicable Federal laws. (p) SCENIC AND HISTORIC VALUES.—Notwith- standing subsections (b) and (c), the Secretary may approve a project for the National Highway System if the project is designed to— (1) allow for the preservation of environ- mental, scenic, or historic values; (2) ensure safe use of the facility; and (3) comply with subsection (a). (q) PHASE CONSTRUCTION.—Safety consider- ations for a project under this title may be met by phase construction consistent with the opera- tive safety management system established in accordance with a statewide transportation im- provement program approved by the Secretary. (r) PAVEMENT MARKINGS.—The Secretary shall not approve any pavement markings project that includes the use of glass beads containing more than 200 parts per million of arsenic or lead, as determined in accordance with Environ- mental Protection Agency testing methods 3052, 6010B, or 6010C. (s) ELECTRIC VEHICLE CHARGING STATIONS.— (1) STANDARDS.—Electric vehicle charging infrastructure installed using funds provided under this title shall provide, at a minimum— (A) non-proprietary charging connectors that meet applicable industry safety stand- ards; and (B) open access to payment methods that are available to all members of the public to ensure secure, convenient, and equal access to the electric vehicle charging infrastruc- ture that shall not be limited by member- ship to a particular payment provider. (2) TREATMENT OF PROJECTS.—Notwith- standing any other provision of law, a project to install electric vehicle charging infrastruc- ture using funds provided under this title shall be treated as if the project is located on a Fed- eral-aid highway. (Pub. L. 85–767, Aug. 27, 1958, 72 Stat. 894; Pub. L. 88–157, § 4, Oct. 24, 1963, 77 Stat. 277; Pub. L. 89–574, §§ 5(a), 14, Sept. 13, 1966, 80 Stat. 767, 771; Pub. L. 91–605, title I, § 136(a), (b), Dec. 31, 1970, 84 Stat. 1734; Pub. L. 93–87, title I, §§ 114, 152(2), 156, Aug. 13, 1973, 87 Stat. 257, 276, 277; Pub. L. 95–599, title I, §§ 113, 116(d), 141(f), (g), Nov. 6, 1978, 92 Stat. 2696, 2699, 2711; Pub. L. 96–106, § 3, Nov. 9, 1979, 93 Stat. 797; Pub. L. 97–424, title I, § 110(a), Jan. 6, 1983, 96 Stat. 2105; Pub. L. 102–240, title I, § 1016(c)–(f)(1), Dec. 18, 1991, 105 Stat. 1946; Pub. L. 104–59, title III, §§ 304, 305(a), Nov. 28, 1995, 109 Stat. 579, 580; Pub. L. 105–178, title I, §§ 1202(c), 1212(a)(2)(A), 1306, June 9, 1998, 112 Stat. 169, 193, 229; Pub. L. 109–59, title I, § 1110(a), (c), title VI, § 6008, Aug. 10, 2005, 119 Stat. 1170, 1171, 1874; Pub. L. 112–141, div. A, title I, §§ 1504, 1519(c)(3), formerly § 1519(c)(4), July 6, 2012, 126 Stat. 564, 575, renumbered § 1519(c)(3), Pub. L. 114–94, div. A, title I, § 1446(d)(5)(B), Dec. 4, 2015, 129 Stat. 1438; Pub. L. 114–94, div. A, title I, § 1404(a), Dec. 4, 2015, 129 Stat. 1409; Pub. L. 117–58, div. A, title I, §§ 11123(d), 11129, Nov. 15, 2021, 135 Stat. 506, 508.) Editorial Notes REFERENCES IN TEXT The date of enactment of the Surface Transportation Reauthorization Act of 2021, referred to in subsec. (d)(2), is the date of enactment of div. A of Pub. L. 117–58, which was approved Nov. 15, 2021. AMENDMENTS 2021—Subsec. (c)(2)(F), (G). Pub. L. 117–58, § 11123(d), added subpar. (F) and redesignated former subpar. (F) as (G). Subsec. (d). Pub. L. 117–58, § 11129(1), inserted subsec. heading, designated existing provisions as par. (1) and inserted par. heading, substituted ‘‘promote the safety, inclusion, and mobility of all users’’ for ‘‘promote the safe’’, and added par. (2). Subsec. (o). Pub. L. 117–58, § 11129(2), designated exist- ing provisions as par. (A), inserted heading, and added par. (B). Subsec. (s). Pub. L. 117–58, § 11129(3), added subsec. (s). 2015—Subsec. (c)(1). Pub. L. 114–94, § 1404(a)(1)(A)(i), substituted ‘‘shall consider’’ for ‘‘may take into ac- count’’ in introductory provisions. Subsec. (c)(1)(C), (D). Pub. L. 114–94, § 1404(a)(1)(A)(ii)–(iv), added subpar. (C) and redesig- nated former subpar. (C) as (D). Subsec. (c)(2)(D) to (F). Pub. L. 114–94, § 1404(a)(1)(B), added subpars. (D) and (E) and redesignated former sub- par. (D) as (F). Subsec. (f). Pub. L. 114–94, § 1404(a)(2), inserted ‘‘pedes- trian walkways,’’ after ‘‘bikeways,’’. Subsec. (q). Pub. L. 114–94, § 1446(d)(5)(B), amended Pub. L. 112–141, § 1519(c). See 2012 Amendment note below. 2012—Subsec. (q). Pub. L. 112–141, § 1519(c)(3), formerly § 1519(c)(4), as renumbered by Pub. L. 114–94, § 1446(d)(5)(B), struck out ‘‘in accordance with section 303 or’’ after ‘‘system established’’. Subsec. (r). Pub. L. 112–141, § 1504, added subsec. (r). 2005—Subsec. (c)(2). Pub. L. 109–59, § 6008, inserted dash after ‘‘Secretary shall consider’’ and subpar. (A) designation before ‘‘the results’’, substituted semicolon for period, and added subpars. (B) to (D). Subsec. (e). Pub. L. 109–59, § 1110(a), inserted subsec. heading, designated existing provisions as par. (1), in- serted par. heading, and added par. (2). Subsec. (g). Pub. L. 109–59, § 1110(c), substituted ‘‘Not later than January 30, 1971, the Secretary shall issue’’ for ‘‘The Secretary shall issue within 30 days after the day of enactment of the Federal-Aid Highway Act of 1970’’. 1998—Subsecs. (b), (c)(2). Pub. L. 105–178, § 1212(a)(2)(A)(ii), substituted ‘‘State transportation de- partments’’ for ‘‘State highway departments’’. Subsec. (d). Pub. L. 105–178, § 1212(a)(2)(A)(i), sub- stituted ‘‘State transportation department’’ for ‘‘State highway department’’. Page 79 TITLE 23—HIGHWAYS § 109 Subsec. (m). Pub. L. 105–178, § 1306(a), redesignated subsec. (n) as (m) and struck out former subsec. (m) which read as follows: ‘‘The Secretary shall issue guide- lines describing the criteria applicable to the Inter- state System in order to insure that the condition of these routes is maintained at the level required by the purposes for which they were designed. The initial guidelines shall be issued no later than October 1, 1979.’’ Subsec. (n). Pub. L. 105–178, § 1306(a)(2), redesignated subsec. (o) as (n). Former subsec. (n) redesignated (m). Pub. L. 105–178, § 1202(c), inserted heading and amend- ed text of subsec. (n) generally. Prior to amendment, text read as follows: ‘‘The Secretary shall not approve any project under this title that will result in the sev- erance or destruction of an existing major route for nonmotorized transportation traffic and light motor- cycles, unless such project provides a reasonably alter- nate route or such a route exists.’’ Subsecs. (o) to (q). Pub. L. 105–178, § 1306(a)(2), (b), added subsec. (q) and redesignated former subsecs. (p) and (q) as (o) and (p), respectively. Former subsec. (o) redesignated (n). 1995—Subsec. (a). Pub. L. 104–59, § 304(1), added subsec. (a) and struck out former subsec. (a) which read as fol- lows: ‘‘The Secretary shall not approve plans and speci- fications for proposed highway projects under this chapter if they fail to provide for a facility (1) that will adequately meet the existing and probable future traf- fic needs and conditions in a manner conducive to safe- ty, durability, and economy of maintenance; (2) that will be designed and constructed in accordance with standards best suited to accomplish the foregoing ob- jectives and to conform to the particular needs of each locality.’’ Subsec. (c). Pub. L. 104–59, § 304(2), added subsec. (c) and struck out former subsec. (c) which read as follows: ‘‘(c) DESIGN AND CONSTRUCTION STANDARDS FOR NHS.—Design and construction standards to be adopted for new construction on the National Highway System, for reconstruction on the National Highway System, and for resurfacing, restoring, and rehabilitating multilane limited access highways on the National Highway System shall be those approved by the Sec- retary in cooperation with the State highway depart- ments. All eligible work for such projects shall meet or exceed such standards.’’ Subsec. (j). Pub. L. 104–59, § 305(a), substituted ‘‘plan for—’’ and pars. (1) and (2) for ‘‘plan for the implemen- tation of any ambient air quality standard for any air quality control region designated pursuant to the Clean Air Act, as amended.’’ Subsec. (q). Pub. L. 104–59, § 304(3), added subsec. (q) and struck out former subsec. (q) which read as follows: ‘‘(q) HISTORIC AND SCENIC VALUES.—If a proposed project under sections 103(e)(4), 133, or 144 involves a historic facility or is located in an area of historic or scenic value, the Secretary may approve such project notwithstanding the requirements of subsections (a) and (b) of this section and section 133(c) if such project is designed to standards that allow for the preservation of such historic or scenic value and such project is de- signed with mitigation measures to allow preservation of such value and ensure safe use of the facility.’’ 1991—Subsec. (a). Pub. L. 102–240, § 1016(f)(1)(A), sub- stituted ‘‘highway projects under this chapter’’ for ‘‘projects on any Federal-aid system’’. Subsec. (c). Pub. L. 102–240, § 1016(c), amended subsec. (c) generally. Prior to amendment, subsec. (c) read as follows: ‘‘Projects on the Federal-aid secondary system in which Federal funds participate shall be constructed according to specifications that will provide all-weath- er service and permit maintenance at a reasonable cost.’’ Subsec. (l)(1). Pub. L. 102–240, § 1016(f)(1)(B), sub- stituted ‘‘highway’’ for ‘‘system’’ in introductory pro- visions. Subsecs. (p), (q). Pub. L. 102–240, § 1016(d), (e), added subsecs. (p) and (q). 1983—Subsec. (o). Pub. L. 97–424 added subsec. (o). 1979—Subsec. (l)(1)(A). Pub. L. 96–106 struck out ‘‘any aspect of’’ after ‘‘adversely affect’’. 1978—Subsec. (f). Pub. L. 95–599, § 141(f), inserted ‘‘bikeways’’ after ‘‘surfaces, median strips,’’. Subsec. (l). Pub. L. 95–599, § 113, added subsec. (l). Subsec. (m). Pub. L. 95–599, § 116(d), added subsec. (m). Subsec. (n). Pub. L. 95–599, § 141(g), added subsec. (n). 1973—Subsec. (g). Pub. L. 93–87, § 152(2), substituted ‘‘Act’’ for ‘‘Rct’’, thus correcting the popular name to read ‘‘Federal-Aid Highway Act of 1970’’. Subsec. (i). Pub. L. 93–87, § 114, authorized promulga- tion of noise-level standards for highways on any Fed- eral-aid system for which project approval has been se- cured prior to July 1, 1972, and approval of any project on a Federal-aid system to which noise-level standards are made applicable, described the range of the projects, made money available for financing Federal share of the project, and deemed such project a high- way project for all purposes of this title. Subsec. (k). Pub. L. 93–87, § 156, added subsec. (k). 1970—Subsec. (g). Pub. L. 91–605, § 136(a), substituted provisions ordering the Secretary to issue within 30 days after Dec. 31, 1970, guidelines, which will apply to all proposed projects approved by the Secretary after their issuance, for minimizing soil erosion from high- way construction for provisions authorizing the Sec- retary to consult with the Secretary of Agriculture re- specting guidelines for minimizing soil erosion from highway construction and report such guidelines to Congress not later than July 1, 1967. Subsecs. (h) to (j). Pub. L. 91–605, § 136(b), added sub- secs. (h) to (j). 1966—Subsec. (b). Pub. L. 89–574, § 5(a), required that in all cases the standards provide for at least four lanes of traffic. Subsec. (g). Pub. L. 89–574, § 14, added subsec. (g). 1963—Subsec. (b). Pub. L. 88–157 substituted ‘‘Such standards, as applied to each actual construction project, shall be adequate to enable such project to ac- commodate the types and volumes of traffic antici- pated for such project for the twenty-year period com- mencing on the date of approval by the Secretary, under section 106 of this title, of the plans, specifica- tions, and estimates for actual construction of such project’’ for ‘‘Such standards shall be adequate to ac- commodate the types and volumes of traffic forecast for the year 1975’’, struck out ‘‘up’’ before ‘‘to such standards’’ and inserted ‘‘all’’ in phrase ‘‘throughout all the States’’. 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 Except as otherwise provided, 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. Pub. L. 114–94, div. A, title I, § 1446(d), Dec. 4, 2015, 129 Stat. 1438, provided that the amendment made by sec- tion 1446(d)(5)(B) is effective as of July 6, 2012, and as if included in Pub. L. 112–141 as enacted. EFFECTIVE DATE OF 2012 AMENDMENT Amendment by Pub. L. 112–141 effective Oct. 1, 2012, see section 3(a) of Pub. L. 112–141, set out as an Effec- tive and Termination Dates of 2012 Amendment note under section 101 of this title. EFFECTIVE DATE OF 1991 AMENDMENT Amendment by Pub. 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 Page 80 TITLE 23—HIGHWAYS § 109 1100 of Pub. L. 102–240, set out as a note under section 104 of this title. UPDATES TO MANUAL ON UNIFORM TRAFFIC CONTROL DEVICES Pub. L. 117–58, div. A, title I, § 11135, Nov. 15, 2021, 135 Stat. 516, provided that: ‘‘In carrying out the first up- date to the Manual on Uniform Traffic Control Devices under section 109(d)(2) of title 23, United States Code, to the greatest extent practicable, the Secretary [of Transportation] shall include updates necessary to pro- vide for— ‘‘(1) the protection of vulnerable road users (as de- fined in section 148(a) of title 23, United States Code); ‘‘(2) supporting the safe testing of automated vehi- cle technology and any preparation necessary for the safe integration of automated vehicles onto public streets; ‘‘(3) appropriate use of variable message signs to en- hance public safety; ‘‘(4) the minimum retroreflectivity of traffic con- trol devices and pavement markings; and ‘‘(5) any additional recommendations made by the National Committee on Uniform Traffic Control De- vices that have not been incorporated into the Man- ual on Uniform Traffic Control Devices.’’ ROADSIDE HIGHWAY SAFETY HARDWARE Pub. L. 117–58, div. A, title I, § 11517, Nov. 15, 2021, 135 Stat. 601, provided that: ‘‘(a) IN GENERAL.—To the maximum extent prac- ticable, the Secretary [of Transportation] shall develop a process for third party verification of full-scale crash testing results from crash test labs, including a method for formally verifying the testing outcomes and pro- viding for an independent pass/fail determination. In establishing such a process, the Secretary shall seek to ensure the independence of crash test labs by ensuring that those labs have a clear separation between device development and testing in cases in which lab employ- ees test devices that were developed within the parent organization of the employee. ‘‘(b) CONTINUED ISSUANCE OF ELIGIBILITY LETTERS.— Until the implementation of the process described in subsection (a) is complete, the Secretary may, and is encouraged to, ensure that the Administrator of the Federal Highway Administration continues to issue Federal-aid reimbursement eligibility letters for road- side safety hardware as a service to States. ‘‘(c) REPORT TO CONGRESS.— ‘‘(1) IN GENERAL.—If the Secretary seeks to dis- continue issuing the letters described in subsection (b), 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 at least 1 year before discontinuing the letters. ‘‘(2) INCLUSIONS.—The report described in paragraph (1) shall include a summary of the third-party verification process described in subsection (a) that will replace the Federal Highway Administration issuance of eligibility letters and any other relevant information that the Secretary deems necessary.’’ STORMWATER BEST MANAGEMENT PRACTICES REPORTS Pub. L. 117–58, div. A, title I, § 11521, Nov. 15, 2021, 135 Stat. 603, provided that: ‘‘(a) DEFINITIONS.—In this section: ‘‘(1) ADMINISTRATOR.—The term ‘Administrator’ means the Administrator of the Federal Highway Ad- ministration. ‘‘(2) BEST MANAGEMENT PRACTICES REPORT.—The term ‘best management practices report’ means— ‘‘(A) the 2014 report sponsored by the Adminis- trator entitled ‘Determining the State of the Prac- tice in Data Collection and Performance Measure- ment of Stormwater Best Management Practices’; and ‘‘(B) the 1997 report sponsored by the Adminis- trator entitled ‘Stormwater Best Management Practices in an Ultra-Urban Setting: Selection and Monitoring’. ‘‘(b) REISSUANCE.—Not later than 1 year after the date of enactment of this Act [Nov. 15, 2021], the Ad- ministrator shall update and reissue each best manage- ment practices report to reflect new information and advancements in stormwater management. ‘‘(c) UPDATES.—Not less frequently than once every 5 years after the date on which the Administrator re- issues a best management practices report described in subsection (b), the Administrator shall update and re- issue the best management practices report until the earlier of the date on which— ‘‘(1) the best management practices report is with- drawn; or ‘‘(2) the contents of the best management practices report are incorporated (including by reference) into applicable regulations of the Administrator.’’ RETROACTIVE APPLICATION OF ADJUSTMENT TO CRI- TERIA FOR CATEGORICAL EXCLUSION FOR PROJECTS OF LIMITED FEDERAL ASSISTANCE Pub. L. 114–94, div. A, title I, § 1314(b), Dec. 4, 2015, 129 Stat. 1403, provided that: ‘‘The first adjustment made pursuant to the amendments made by subsection (a) [amending section 1317 of Pub. L. 112–141, set out under this section] shall— ‘‘(1) be carried out not later than 60 days after the date of enactment of this Act [Dec. 4, 2015]; and ‘‘(2) reflect the increase in the Consumer Price Index since July 1, 2012.’’ CATEGORICAL EXCLUSION DETERMINATIONS Pub. L. 114–94, div. A, title I, § 1315(b), Dec. 4, 2015, 129 Stat. 1403, provided that: ‘‘Not later than 30 days after the date of enactment of this Act [Dec. 4, 2015], the Sec- retary [of Transportation] shall revise section 771.117(g) of title 23, Code of Federal Regulations, to allow a pro- grammatic agreement under this section [see section 1318(e) of Pub. L. 112–141, set out under this section] to include responsibility for making categorical exclusion determinations— ‘‘(1) for actions described in subsections (c) and (d) of section 771.117 of title 23, Code of Federal Regula- tions; and ‘‘(2) that meet the criteria for a categorical exclu- sion under section 1508.4 of title 40, Code of Federal Regulations (as in effect on the date of enactment of this Act), and are identified in the programmatic agreement.’’ ROADWAY DESIGN STANDARD FLEXIBILITY Pub. L. 114–94, div. A, title I, § 1404(b), Dec. 4, 2015, 129 Stat. 1409, provided that: ‘‘Notwithstanding section 109(o) of title 23, United States Code, a State may allow a local jurisdiction to use a roadway design publication that is different from the roadway design publication used by the State in which the local jurisdiction is lo- cated for the design of a project on a roadway under the ownership of the local jurisdiction (other than a high- way on the Interstate System) if— ‘‘(1) the local jurisdiction is a direct recipient of Federal funds for the project; ‘‘(2) the roadway design publication— ‘‘(A) is recognized by the Federal Highway Ad- ministration; and ‘‘(B) is adopted by the local jurisdiction; and ‘‘(3) the design complies with all other applicable Federal laws.’’ EMERGENCY EXEMPTIONS Pub. L. 114–94, div. A, title I, § 1432, Dec. 4, 2015, 129 Stat. 1429, provided that: ‘‘(a) IN GENERAL.—Any road, highway, railway, bridge, or transit facility that is damaged by an emer- gency that is declared by the Governor of the State, with the concurrence of the Secretary of Homeland Se- curity, or declared as an emergency by the President pursuant to the Robert T. Stafford Disaster Relief and Page 81 TITLE 23—HIGHWAYS § 109 Emergency Assistance Act (42 U.S.C. 5121 et seq.), and that is in operation or under construction on the date on which the emergency occurs may be reconstructed in the same location with the same capacity, dimen- sions, and design as before the emergency subject to the exemptions and expedited procedures under sub- section (b). ‘‘(b) EXEMPTIONS AND EXPEDITED PROCEDURES.— ‘‘(1) ALTERNATIVE ARRANGEMENTS.—Alternative ar- rangements for an emergency under section 1506.11 of title 40, Code of Federal Regulations (as in effect on the date of enactment of this Act [Dec. 4, 2015]) shall apply to reconstruction under subsection (a), and the reconstruction shall be considered necessary to con- trol the immediate impacts of the emergency. ‘‘(2) STORMWATER DISCHARGE PERMITS.—A general permit for stormwater discharges from construction activities, if available, issued by the Administrator of the Environmental Protection Agency or the director of a State program under section 402(p) of the Federal Water Pollution Control Act (33 U.S.C. 1342(p)), as ap- plicable, shall apply to reconstruction under sub- section (a), on submission of a notice of intent to be subject to the permit. ‘‘(3) EMERGENCY PROCEDURES.—The emergency pro- cedures for issuing permits in accordance with sec- tion 325.2(e)(4) of title 33, Code of Federal Regulations (as in effect on the date of enactment of this Act) shall apply to reconstruction under subsection (a), and the reconstruction shall be considered an emer- gency under that regulation. ‘‘(4) NATIONAL HISTORIC PRESERVATION ACT EXEMP- TION.—Reconstruction under subsection (a) is eligible for an exemption from the requirements of the Na- tional Historic Preservation Act of 1966 [Pub. L. 89–665, see Tables for classification] pursuant to part 78 of title 36, Code of Federal Regulations (as in effect on the date of enactment of this Act). ‘‘(5) ENDANGERED SPECIES ACT EXEMPTION.—An ex- emption from the requirements of the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.) pursuant to section 7(p) of that Act (16 U.S.C. 1536(p)) shall apply to reconstruction under subsection (a) and, if the President makes the determination required under section 7(p) of that Act, the determinations required under subsections (g) and (h) of that section shall be deemed to be made. ‘‘(6) EXPEDITED CONSULTATION UNDER ENDANGERED SPECIES ACT.—Expedited consultation pursuant to section 402.05 of title 50, Code of Federal Regulations (as in effect on the date of enactment of this Act) shall apply to reconstruction under subsection (a). ‘‘(7) OTHER EXEMPTIONS.—Any reconstruction that is exempt under paragraph (5) shall also be exempt from requirements under— ‘‘(A) the Migratory Bird Treaty Act (16 U.S.C. 703 et seq.); ‘‘(B) the Wild and Scenic Rivers Act (16 U.S.C. 1271 et seq.); and ‘‘(C) the Fish and Wildlife Coordination Act (16 U.S.C. 661 et seq.).’’ SAFETY FOR USERS Pub. L. 114–94, div. A, title I, § 1442, Dec. 4, 2015, 129 Stat. 1436, provided that: ‘‘(a) IN GENERAL.—The Secretary [of Transportation] shall encourage each State and metropolitan planning organization to adopt standards for the design of Fed- eral surface transportation projects that provide for the safe and adequate accommodation (as determined by the State) of all users of the surface transportation network, including motorized and nonmotorized users, in all phases of project planning, development, and op- eration. ‘‘(b) REPORT.—Not later than 2 years after the date of enactment of this Act [Dec. 4, 2015], the Secretary shall make available to the public a report cataloging exam- ples of State law or State transportation policy that provide for the safe and adequate accommodation of all users of the surface transportation network, in all phases of project planning, development, and operation. ‘‘(c) BEST PRACTICES.—Based on the report under sub- section (b), the Secretary shall identify and dissemi- nate examples of best practices where States have adopted measures that have successfully provided for the safe and adequate accommodation of all users of the surface transportation network in all phases of project planning, development, and operation.’’ CATEGORICAL EXCLUSIONS IN EMERGENCIES Pub. L. 112–141, div. A, title I, § 1315, July 6, 2012, 126 Stat. 549, provided that: ‘‘(a) IN GENERAL.—Not later than 30 days after the date of enactment of this Act [see section 3(a), (b) of Pub. L. 112–141, set out as Effective and Termination Dates of 2012 Amendment notes under section 101 of this title], for the repair or reconstruction of any road, highway, or bridge that is in operation or under con- struction when damaged by an emergency declared by the Governor of the State and concurred in by the Sec- retary [of Transportation], or for a disaster or emer- gency declared by the President pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5121 et seq.), the Secretary shall publish a notice of proposed rulemaking to treat any such re- pair or reconstruction activity as a class of action cat- egorically excluded from the requirements relating to environmental assessments or environmental impact statements under section 1508.4 of title 40, Code of Fed- eral Regulations, and section 771.117 of title 23, Code of Federal Regulations (as in effect on the date of enact- ment of this Act) if such repair or reconstruction activ- ity is— ‘‘(1) in the same location with the same capacity, dimensions, and design as the original road, highway, or bridge as before the declaration described in this section; and ‘‘(2) commenced within a 2-year period beginning on the date of a declaration described in this section. ‘‘(b) RULEMAKING.— ‘‘(1) IN GENERAL.—The Secretary [of Transpor- tation] shall ensure that the rulemaking helps to conserve Federal resources and protects public safety and health by providing for periodic evaluations to determine if reasonable alternatives exist to roads, highways, or bridges that repeatedly require repair and reconstruction activities. ‘‘(2) REASONABLE ALTERNATIVES.—The reasonable alternatives described in paragraph (1) include ac- tions that could reduce the need for Federal funds to be expended on such repair and reconstruction activi- ties, better protect public safety and health and the environment, and meet transportation needs as de- scribed in relevant and applicable Federal, State, local and tribal plans.’’ CATEGORICAL EXCLUSIONS FOR PROJECTS WITHIN THE RIGHT-OF-WAY Pub. L. 112–141, div. A, title I, § 1316, July 6, 2012, 126 Stat. 549, provided that: ‘‘(a) IN GENERAL.—The Secretary [of Transportation] shall— ‘‘(1) not later than 180 days after the date of enact- ment of this Act [see section 3(a), (b) of Pub. L. 112–141, set out as Effective and Termination Dates of 2012 Amendment notes under section 101 of this title], designate any project (as defined in section 101(a) of title 23, United States Code) within an existing oper- ational right-of-way as an action categorically ex- cluded from the requirements relating to environ- mental assessments or environmental impact state- ments under section 1508.4 of title 40, Code of Federal Regulations, and section 771.117(c) of title 23, Code of Federal Regulations; and ‘‘(2) not later than 150 days after the date of enact- ment of this Act, promulgate regulations to carry out paragraph (1). ‘‘(b) DEFINITION OF AN OPERATIONAL RIGHT-OF-WAY.— In this section, the term ‘operational right-of-way’ means all real property interests acquired for the con- Page 82 TITLE 23—HIGHWAYS § 109 struction, operation, or mitigation of a project (as de- fined in section 101(a) of title 23, United States Code), including the locations of the roadway, bridges, inter- changes, culverts, drainage, clear zone, traffic control signage, landscaping, and any rest areas with direct ac- cess to a controlled access highway.’’ CATEGORICAL EXCLUSION FOR PROJECTS OF LIMITED FEDERAL ASSISTANCE Pub. L. 112–141, div. A, title I, § 1317, July 6, 2012, 126 Stat. 550, as amended by Pub. L. 114–94, div. A, title I, § 1314(a), Dec. 4, 2015, 129 Stat. 1402; Pub. L. 117–58, div. A, title I, § 11317, Nov. 15, 2021, 135 Stat. 543, provided that: ‘‘Not later than 180 days after the date of enact- ment of this Act [see section 3(a), (b) of Pub. L. 112–141, set out as Effective and Termination Dates of 2012 Amendment notes under section 101 of this title], the Secretary [of Transportation] shall— ‘‘(1) designate as an action categorically excluded from the requirements relating to environmental as- sessments or environmental impact statements under section 1508.4 of title 40, Code of Federal Regulations, and section 771.117(c) of title 23, Code of Federal Reg- ulations, any project— ‘‘(A) that receives less than $6,000,000 (as adjusted annually by the Secretary [of Transportation] to reflect any increases in the Consumer Price Index prepared by the Department of Labor) of Federal funds; or ‘‘(B) with a total estimated cost of not more than $35,000,000 (as adjusted annually by the Secretary to reflect any increases in the Consumer Price Index prepared by the Department of Labor) and Federal funds comprising less than 15 percent of the total estimated project cost; and ‘‘(2) not later than 150 days after the date of enact- ment of this Act, promulgate regulations to carry out paragraph (1).’’ PROGRAMMATIC AGREEMENTS AND ADDITIONAL CATEGORICAL EXCLUSIONS Pub. L. 112–141, div. A, title I, § 1318, July 6, 2012, 126 Stat. 550, as amended by Pub. L. 114–94, div. A, title I, § 1315(a), Dec. 4, 2015, 129 Stat. 1403, provided that: ‘‘(a) IN GENERAL.—Not later than 60 days after the date of enactment of this Act [see section 3(a), (b) of Pub. L. 112–141, set out as Effective and Termination Dates of 2012 Amendment notes under section 101 of this title], the Secretary [of Transportation] shall— ‘‘(1) survey the use by the Department [of Transpor- tation] of categorical exclusions in transportation projects since 2005; ‘‘(2) publish a review of the survey that includes a description of— ‘‘(A) the types of actions categorically excluded; and ‘‘(B) any requests previously received by the Sec- retary for new categorical exclusions; and ‘‘(3) solicit requests from State departments of transportation, transit authorities, metropolitan planning organizations, or other government agencies for new categorical exclusions. ‘‘(b) NEW CATEGORICAL EXCLUSIONS.—Not later than 120 days after the date of enactment of this Act, the Secretary shall publish a notice of proposed rule- making to propose new categorical exclusions received by the Secretary under subsection (a), to the extent that the categorical exclusions meet the criteria for a categorical exclusion under section 1508.4 of title 40, Code of Federal Regulations, and section 771.117(a) of title 23, Code of Federal Regulations (as those regula- tions are in effect on the date of the notice). ‘‘(c) ADDITIONAL ACTIONS.—The Secretary shall issue a proposed rulemaking to move the following types of actions from subsection (d) of section 771.117 of title 23, Code of Federal Regulations (as in effect on the date of enactment of this Act), to subsection (c) of that sec- tion, to the extent that such movement complies with the criteria for a categorical exclusion under section 1508.4 of title 40, Code of Federal Regulations (as in ef- fect on the date of enactment of this Act): ‘‘(1) Modernization of a highway by resurfacing, res- toration, rehabilitation, reconstruction, adding shoulders, or adding auxiliary lanes (including park- ing, weaving, turning, and climbing). ‘‘(2) Highway safety or traffic operations improve- ment projects, including the installation of ramp me- tering control devices and lighting. ‘‘(3) Bridge rehabilitation, reconstruction, or re- placement or the construction of grade separation to replace existing at-grade railroad crossings. ‘‘(d) PROGRAMMATIC AGREEMENTS.— ‘‘(1) IN GENERAL.—The Secretary shall seek opportu- nities to enter into programmatic agreements with the States that establish efficient administrative procedures for carrying out environmental and other required project reviews. ‘‘(2) INCLUSIONS.—Programmatic agreements au- thorized under paragraph (1) may include agreements that allow a State to determine on behalf of the Fed- eral Highway Administration whether a project is categorically excluded from the preparation of an en- vironmental assessment or environmental impact statement under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.). ‘‘(3) DETERMINATIONS.—An agreement described in paragraph (2) may include determinations by the Sec- retary [of Transportation] of the types of projects categorically excluded (consistent with section 1508.4 of title 40, Code of Federal Regulations) in the State in addition to the types listed in subsections (c) and (d) of section 771.117 of title 23, Code of Federal Regu- lations (as in effect on the date of enactment of this Act). ‘‘(e) PROGRAMMATIC AGREEMENT TEMPLATE.— ‘‘(1) IN GENERAL.—The Secretary [of Transpor- tation] shall develop a template programmatic agree- ment described in subsection (d) that provides for ef- ficient and adequate procedures for evaluating Fed- eral actions described in section 771.117(c) of title 23, Code of Federal Regulations (as in effect on the date of enactment of this subsection [Dec. 4, 2015]). ‘‘(2) USE OF TEMPLATE.—The Secretary— ‘‘(A) on receipt of a request from a State, shall use the template programmatic agreement devel- oped under paragraph (1) in carrying out this sec- tion; and ‘‘(B) on consent of the applicable State, may mod- ify the template as necessary to address the unique needs and characteristics of the State. ‘‘(3) OUTCOME MEASUREMENTS.—The Secretary shall establish a method to verify that actions described in section 771.117(c) of title 23, Code of Federal Regula- tions (as in effect on the date of enactment of this subsection), are evaluated and documented in a con- sistent manner by the State that uses the template programmatic agreement under this subsection.’’ ENGINEERING JUDGMENT Pub. L. 112–141, div. A, title I, § 1529, July 6, 2012, 126 Stat. 583, provided that: ‘‘Not later than 90 days after the date of enactment of this Act [see section 3(a), (b) of Pub. L. 112–141, set out as Effective and Termination Dates of 2012 Amendment notes under section 101 of this title], the Secretary [of Transportation] shall issue guidance to State transportation departments clari- fying that the standards, guidance, and options for de- sign and application of traffic control devices provided in the Manual on Uniform Traffic Control Devices should not be considered a substitute for engineering judgment.’’ HIGHWAY SIGNS RELATING TO VETERANS CEMETERIES Pub. L. 108–29, § 3, May 29, 2003, 117 Stat. 772, provided that: ‘‘(a) IN GENERAL.—Notwithstanding the terms of any agreement entered into by the Secretary of Transpor- tation and a State under section 109(d) or 402(a) of title Page 83 TITLE 23—HIGHWAYS § 109 23, United States Code, a veterans cemetery shall be treated as a site for which a supplemental guide sign may be placed on any Federal-aid highway. ‘‘(b) APPLICABILITY.—Subsection (a) shall apply to an agreement entered into before, on, or after the date of the enactment of this Act [May 29, 2003].’’ INTERNATIONAL ROUGHNESS INDEX Pub. L. 105–178, title I, § 1213(b), June 9, 1998, 112 Stat. 200, provided that: ‘‘(1) STUDY.—The Comptroller General of the United States shall conduct a study on the international roughness index that is used as an indicator of pave- ment quality on the Federal-aid highway system. ‘‘(2) REQUIRED ELEMENTS.—The study shall specify the extent of usage of the index and the extent to which the international roughness index measurement is reli- able across different manufacturers and types of pave- ment. ‘‘(3) REPORT TO CONGRESS.—Not later than 2 years after the date of enactment of this Act [June 9, 1998], the Comptroller General shall submit to Congress a re- port on the results of the study.’’ ENVIRONMENTAL STREAMLINING Pub. L. 105–178, title I, § 1309, June 9, 1998, 112 Stat. 232, as amended by Pub. L. 105–206, title IX, § 9004(c), July 22, 1998, 112 Stat. 843, which directed the Secretary of Transportation to develop and implement a coordi- nated environmental review process for highway con- struction and mass transit projects, was repealed by Pub. L. 109–59, title VI, § 6002(d), Aug. 10, 2005, 119 Stat. 1865. ROADSIDE SAFETY TECHNOLOGIES Pub. L. 105–178, title I, § 1402, June 9, 1998, 112 Stat. 236, as amended by Pub. L. 105–206, title IX, § 9005(c), July 22, 1998, 112 Stat. 848, provided that: ‘‘(a) CRASH CUSHIONS.— ‘‘(1) GUIDANCE.—Not later than 18 months after the date of enactment of this Act [June 9, 1998], the Sec- retary shall issue guidance regarding the benefits and safety performance of redirective and nonredirective crash cushions in different road applications, taking into consideration roadway conditions, operating speed limits, the location of the crash cushion in the right-of-way, and any other relevant factors. The guidance shall include recommendations on the most appropriate circumstances for utilization of redirec- tive and nonredirective crash cushions. ‘‘(2) USE OF GUIDANCE.—States shall use the guid- ance issued under this subsection in evaluating the safety and cost-effectiveness of utilizing different crash cushion designs and determining whether re- directive or nonredirective crash cushions or other safety appurtenances should be installed at specific highway locations. ‘‘(b) TRAFFIC FLOW AND SAFETY APPLICATIONS OF ROAD BARRIERS.— ‘‘(1) STUDY.—The Secretary shall conduct a study on the technologies and methods to enhance safety, streamline construction, and improve capacity by providing positive separation at all times between traffic, equipment, and workers on highway construc- tion projects. The study shall also address how such technologies can be used to improve capacity and safety at those specific highway, bridge, and other appropriate locations where reversible lane, contraflow, and high occupancy vehicle lane oper- ations are implemented during peak traffic periods. ‘‘(2) USES TO CONSIDER.—In conducting the study, the Secretary shall consider, at a minimum, uses of positive separation technologies related to— ‘‘(A) separating workers from traffic flow when work is in progress; ‘‘(B) providing additional safe work space by uti- lizing adjacent and available traffic lanes during off-peak hours; ‘‘(C) rapid deployment to allow for daily or peri- odic restoration of lanes for use by traffic during peak hours as needed; ‘‘(D) mitigating congestion caused by construc- tion by— ‘‘(i) opening all adjacent and available lanes to traffic during peak traffic hours; or ‘‘(ii) using reversible lanes to optimize capacity of the highway by adjusting to directional traffic flow; and ‘‘(E) permanent use of positive separation tech- nologies to create contraflow or reversible lanes to increase the capacity of congested highways, bridges, and tunnels. ‘‘(3) REPORT.—Not later than 18 months after the date of enactment of this Act [June 9, 1998], the Sec- retary shall submit to Congress a report on the re- sults of the study. The report shall include findings and recommendations for the use of the technologies referred to in paragraph (2) to provide positive sepa- ration on appropriate projects.’’ METRIC REQUIREMENTS Pub. L. 104–59, title II, § 205(c), Nov. 28, 1995, 109 Stat. 577, as amended by Pub. L. 105–178, title I, § 1211(d), June 9, 1998, 112 Stat. 188, provided that: ‘‘(1) PLACEMENT AND MODIFICATION OF SIGNS.—The Secretary shall not require the States to expend any Federal or State funds to construct, erect, or otherwise place or to modify any sign relating to a speed limit, distance, or other measurement on a highway for the purpose of having such sign establish such speed limit, distance, or other measurement using the metric sys- tem. ‘‘(2) OTHER ACTIONS.—The Secretary shall not require that any State use or plan to use the metric system with respect to designing or advertising, or preparing plans, specifications, estimates, or other documents, for a Federal-aid highway project eligible for assistance under title 23, United States Code. ‘‘(3) DEFINITIONS.—In this subsection, the following definitions apply: ‘‘(A) HIGHWAY.—The term ‘highway’ has the mean- ing such term has under section 101 of title 23, United States Code. ‘‘(B) METRIC SYSTEM.—The term ‘metric system’ has the meaning the term ‘metric system of measure- ment’ has under section 4 of the Metric Conversion Act of 1975 (15 U.S.C. 205c).’’ TYPE II NOISE BARRIERS Pub. L. 104–59, title III, § 339(b), Nov. 28, 1995, 109 Stat. 605, provided that: ‘‘(1) GENERAL RULE.—No funds made available out of the Highway Trust Fund may be used to construct Type II noise barriers (as defined by section 772.5(i) of title 23, Code of Federal Regulations) pursuant to sub- sections (h) and (i) of section 109 of title 23, United States Code, if such barriers were not part of a project approved by the Secretary before the date of the enact- ment of this Act [Nov. 28, 1995]. ‘‘(2) EXCEPTIONS.—Paragraph (1) shall not apply to construction of Type II noise barriers along lands that were developed or were under substantial construction before approval of the acquisition of the rights-of-ways for, or construction of, the existing highway.’’ HIGHWAY SIGNS FOR NATIONAL HIGHWAY SYSTEM Pub. L. 104–59, title III, § 359(b), Nov. 28, 1995, 109 Stat. 626, provided that: ‘‘(1) STUDY.—The Secretary shall conduct a study to determine the cost, need, and efficacy of establishing a highway sign for identifying routes on the National Highway System. In conducting the study, the Sec- retary shall make a determination concerning whether to identify National Highway System route numbers. ‘‘(2) REPORT.—Not later than March 1, 1997, the Sec- retary shall transmit to Congress a report on the re- sults of the study.’’ USE OF RECYCLED PAVING MATERIAL Pub. L. 102–240, title I, § 1038, Dec. 18, 1991, 105 Stat. 1987, as amended by Pub. L. 104–59, title II, § 205(b), title III, § 327, Nov. 28, 1995, 109 Stat. 577, 592, provided that: Page 84 TITLE 23—HIGHWAYS § 109 ‘‘(a) ASPHALT PAVEMENT CONTAINING RECYCLED RUB- BER DEMONSTRATION PROGRAM.—Notwithstanding any other provision of title 23, United States Code, or regu- lation or policy of the Department of Transportation, the Secretary (or a State acting as the Department’s agent) may not disapprove a highway project under chapter 1 of title 23, United States Code, on the ground that the project includes the use of asphalt pavement containing recycled rubber. Under this subsection, a patented application process for recycled rubber shall be eligible for approval under the same conditions that an unpatented process is eligible for approval. ‘‘(b) STUDIES.— ‘‘(1) IN GENERAL.—The Secretary and the Adminis- trator of the Environmental Protection Agency shall coordinate and conduct, in cooperation with the States, a study to determine— ‘‘(A) the threat to human health and the environ- ment associated with the production and use of as- phalt pavement containing recycled rubber; ‘‘(B) the degree to which asphalt pavement con- taining recycled rubber can be recycled; and ‘‘(C) the performance of the asphalt pavement containing recycled rubber under various climate and use conditions. ‘‘(2) DIVISION OF RESPONSIBILITIES.—The Adminis- trator shall conduct the part of the study relating to paragraph (1)(A) and the Secretary shall conduct the part of the study relating to paragraph (1)(C). The Administrator and the Secretary shall jointly con- duct the study relating to paragraph (1)(B). ‘‘(3) ADDITIONAL STUDY.—The Secretary and the Ad- ministrator, in cooperation with the States, shall jointly conduct a study to determine the economic savings, technical performance qualities, threats to human health and the environment, and environ- mental benefits of using recycled materials in high- way devices and appurtenances and highway projects, including asphalt containing over 80 percent re- claimed asphalt, asphalt containing recycled glass, and asphalt containing recycled plastic. ‘‘(4) ADDITIONAL ELEMENTS.—In conducting the study under paragraph (3), the Secretary and the Ad- ministrator shall examine utilization of various tech- nologies by States and shall examine the current practices of all States relating to the reuse and dis- posal of materials used in federally assisted highway projects. ‘‘(5) REPORT.—Not later than 18 months after the date of the enactment of this Act [Dec. 18, 1991], the Secretary and the Administrator shall transmit to Congress a report on the results of the studies con- ducted under this subsection, including a detailed analysis of the economic savings and technical per- formance qualities of using such recycled materials in federally assisted highway projects and the envi- ronmental benefits of using such recycled materials in such highway projects in terms of reducing air emissions, conserving natural resources, and reducing disposal of the materials in landfills. ‘‘(c) DOT GUIDANCE.— ‘‘(1) INFORMATION GATHERING AND DISTRIBUTION.— The Secretary shall gather information and rec- ommendations concerning the use of asphalt con- taining recycled rubber in highway projects from those States that have extensively evaluated and ex- perimented with the use of such asphalt and imple- mented such projects and shall make available such information and recommendations on the use of such asphalt to those States which indicate an interest in the use of such asphalt. ‘‘(2) ENCOURAGEMENT OF USE.—The Secretary should encourage the use of recycled materials determined to be appropriate by the studies pursuant to sub- section (b) in federally assisted highway projects. Procuring agencies shall comply with all applicable guidelines or regulations issued by the Administrator of the Environmental Protection Agency. ‘‘(d) ASPHALT PAVEMENT CONTAINING RECYCLED RUB- BER.— ‘‘(1) CRUMB RUBBER MODIFIER RESEARCH.—Not later than 180 days after the date of the enactment of the National Highway System Designation Act of 1995 [Nov. 28, 1995], the Secretary shall develop testing procedures and conduct research to develop perform- ance grade classifications, in accordance with the strategic highway research program carried out under section 307(d) of title 23, United States Code, for crumb rubber modifier binders. The testing proce- dures and performance grade classifications should be developed in consultation with representatives of the crumb rubber modifier industry and other interested parties (including the asphalt paving industry) with experience in the development of the procedures and classifications. ‘‘(2) CRUMB RUBBER MODIFIER PROGRAM DEVELOP- MENT.— ‘‘(A) IN GENERAL.—The Secretary may make grants to States to develop programs to use crumb rubber from scrap tires to modify asphalt pave- ments. ‘‘(B) USE OF GRANT FUNDS.—Grant funds made available to States under this paragraph shall be used— ‘‘(i) to develop mix designs for crumb rubber modified asphalt pavements; ‘‘(ii) for the placement and evaluation of crumb rubber modified asphalt pavement field tests; and ‘‘(iii) for the expansion of State crumb rubber modifier programs in existence on the date the grant is made available. ‘‘(e) DEFINITIONS.—For purpose of this section— ‘‘(1) the term ‘asphalt pavement containing recy- cled rubber’ means any mixture of asphalt and crumb rubber derived from whole scrap tires, such that the physical properties of the asphalt are modified through the mixture, for use in pavement mainte- nance, rehabilitation, or construction applications; and ‘‘(2) the term ‘recycled rubber’ is any crumb rubber derived from processing whole scrap tires or shredded tire material taken from automobiles, trucks, or other equipment owned and operated in the United States.’’ SURVEY AND REPORT ON UPGRADING OF DESIGN STANDARDS Pub. L. 102–240, title I, § 1049, Dec. 18, 1991, 105 Stat. 2000, directed Secretary to conduct a survey to identify current State standards relating to geometric design, traffic control devices, roadside safety, safety appur- tenance design, uniform traffic control devices, and sign legibility and directional clarity for all Federal- aid highways and, not later than 2 years after Dec. 18, 1991, to transmit to Congress a report on the results of the survey and the crashworthiness of traffic lights, traffic signs, guardrails, impact attenuators, concrete barrier treatments, and breakaway utility poles for bridges and roadways currently used by States. EROSION CONTROL GUIDELINES Pub. L. 102–240, title I, § 1057, Dec. 18, 1991, 105 Stat. 2002, provided that: ‘‘(a) DEVELOPMENT.—The Secretary shall develop ero- sion control guidelines for States to follow in carrying out construction projects funded in whole or in part under this title [see Tables for classification]. ‘‘(b) MORE STRINGENT STATE REQUIREMENTS.—Guide- lines developed under subsection (a) shall not preempt any requirement made by or under State law if such re- quirement is more stringent than the guidelines. ‘‘(c) CONSISTENCY WITH OTHER PROGRAMS.—Guidelines developed under subsection (a) shall be consistent with nonpoint source management programs under section 319 of the Federal Water Pollution Control Act [33 U.S.C. 1329] and coastal nonpoint pollution control guidance under section 6217(g) of the Omnibus Budget Reconciliation Act of 1990 [16 U.S.C. 1455b(g)].’’ Page 85 TITLE 23—HIGHWAYS § 111 ROADSIDE BARRIER TECHNOLOGY Pub. L. 102–240, title I, § 1058, Dec. 18, 1991, 105 Stat. 2003, as amended by Pub. L. 104–59, title III, § 328, Nov. 28, 1995, 109 Stat. 593, provided that: ‘‘(a) REQUIREMENT FOR INNOVATIVE BARRIERS.—Not less than 21⁄2 percent of the mileage of new or replace- ment permanent or temporary crashworthy barriers in- cluded in awarded contracts along Federal-aid high- ways within the boundaries of a State in each calendar year shall be innovative crashworthy safety barriers. ‘‘(b) CERTIFICATION.—Each State shall annually cer- tify to the Secretary its compliance with the require- ments of this section. ‘‘(c) DEFINITION OF INNOVATIVE CRASHWORTHY SAFETY BARRIER.—For purposes of this section, the term ‘inno- vative crashworthy safety barrier’ means a barrier, other than a guardrail or guiderail, classified by the Federal Highway Administration as ‘experimental’ or that was classified as ‘operational’ after January 1, 1985, and that meets or surpasses the requirements of the National Cooperative Highway Research Program 350 for longitudinal barriers.’’ ROADSIDE BARRIERS AND SAFETY APPURTENANCES Pub. L. 102–240, title I, § 1073, Dec. 18, 1991, 105 Stat. 2012, provided that: ‘‘(a) INITIATION OF RULEMAKING PROCEEDING.—Not later than 30 days after the date of the enactment of this Act [Dec. 18, 1991], the Secretary shall initiate a rulemaking proceeding to revise the guidelines and es- tablish standards for installation of roadside barriers and other safety appurtenances, including longitudinal barriers, end terminals, and crash cushions. Such rule- making shall reflect state-of-the-art designs, testing, and evaluation criteria contained in the National Coop- erative Highway Research Program Report 230, relating to approval standards which provide an enhanced level of crashworthy performance to accommodate vans, mini-vans, pickup trucks, and 4-wheel drive vehicles. ‘‘(b) FINAL RULE.—Not later than 1 year after the date of the enactment of this Act [Dec. 18, 1991], the Secretary shall complete the rulemaking proceeding initiated under subsection (a), and issue a final rule re- garding the implementation of revised guidelines and standards for acceptable roadside barriers and other safety appurtenances, including longitudinal barriers, end terminals, and crash cushions. Such revised guide- lines and standards shall accommodate vans, mini- vans, pickup trucks, and 4-wheel drive vehicles and shall be applicable to the refurbishment and replace- ment of existing roadside barriers and safety appur- tenances as well as to the installation of new roadside barriers and safety appurtenances.’’ STUDIES RELATING TO ESTABLISHMENT OF STANDARDS FOR RESURFACING, RESTORATION, AND REHABILITA- TION OF HIGHWAYS AND TO ESTABLISHMENT OF UNI- FORM STANDARDS AND CRITERIA FOR TESTING AND IN- SPECTING HIGHWAYS AND BRIDGES Pub. L. 97–424, title I, § 110(b), (c), Jan. 6, 1983, 96 Stat. 2105, provided that: ‘‘(b) The Secretary of Transportation shall enter into appropriate arrangements with the National Academy of Sciences (1) to conduct a study of the safety cost-ef- fectiveness of geometric design criteria of standards currently in effect for construction and reconstruction of highways, other than highways access to which is fully controlled, to determine the most appropriate minimum standards to apply to resurfacing, restora- tion, and rehabilitation projects on such highways, which study shall include a study of the cost effective- ness of the hot dip galvanizing process for the installa- tion, repair, or replacement of exposed structural and miscellaneous steel, and (2) to propose standards to pre- serve and extend the service life of such highways and enhance highway safety. The National Academy of Sciences shall conduct such study in cooperation with the National Transportation Safety Board, the Con- gressional Budget Office, and the American Association of State Highway and Transportation Officials. Upon completion of such study, the National Academy of Sciences shall submit such study and its proposed standards to the Secretary of Transportation for re- view. Within ninety days after submission of such standards to the Secretary of Transportation, the Sec- retary shall submit such study and the proposed stand- ards of the National Academy of Sciences, together with the recommendations of the Secretary, to Con- gress for approval. ‘‘(c)(1) The Secretary of Transportation is directed to coordinate a study with the National Bureau of Stand- ards, the American Society for Testing and Materials, and other organizations as deemed appropriate, (A) to determine the existing quality of design, construction, products, use, and systems for highways and bridges; (B) to determine the need for uniform standards and criteria for design, processing, products, and applica- tions, including personnel training and implementation of enforcement techniques; and (C) to determine the manpower needs and costs of developing a national sys- tem for the evaluation and accreditation of testing and inspection agencies. ‘‘(2) The Secretary shall submit such study to the Congress not later than one year after the date of en- actment of this section [Jan. 6, 1983].’’ EXPENDITURE OF FEDERAL FUNDS FOR HIGHWAY SIGNS USING METRIC SYSTEM Pub. L. 95–599, title I, § 144, Nov. 6, 1978, 92 Stat. 2713, as amended by Pub. L. 96–106, § 14, Nov. 9, 1979, 93 Stat. 798, which prohibited use of Federal funds for signing solely in the metric system, was repealed by Pub. L. 102–240, title I, § 1053, Dec. 18, 1991, 105 Stat. 2001. MODIFICATION OF PROJECT AGREEMENTS TO EFFECTUATE REQUIREMENT OF FOUR-LANES OF TRAFFIC Authorization to modify projects agreements entered into prior to September 13, 1966, to effectuate the amendment of this section by Pub. L. 89–574 which added the requirement of four-lanes of traffic, see sec- tion 5(b) of Pub. L. 89–574, set out as a note under sec- tion 106 of this title. [§ 110. Repealed. Pub. L. 112–141, div. A, title I, § 1519(b)(1)(A), July 6, 2012, 126 Stat. 575] Section, added and amended Pub. L. 105–178, title I, § 1105(a), (c), June 9, 1998, 112 Stat. 130; Pub. L. 105–206, title IX, § 9002(e), July 22, 1998, 112 Stat. 835; Pub. L. 106–113, div. B, § 1000(a)(5) [title III, § 304], Nov. 29, 1999, 113 Stat. 1536, 1501A–306; Pub. L. 106–159, title I, § 102(a)(2), Dec. 9, 1999, 113 Stat. 1752; Pub. L. 109–59, title I, § 1105(a)–(e), Aug. 10, 2005, 119 Stat. 1165, 1166, re- lated to revenue aligned budget authority. Another section 110 was renumbered section 126 of this title. A prior section 110, Pub. L. 85–767, Aug. 27, 1958, 72 Stat. 894, related to project agreements, prior to repeal by Pub. L. 105–178, title I, § 1105(a), June 9, 1998, 112 Stat. 130. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF REPEAL Repeal 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. § 111. Agreements relating to use of and access to rights-of-way—Interstate System (a) IN GENERAL.—All agreements between the Secretary and the State transportation depart- ment for the construction of projects on the Interstate System shall contain a clause pro- viding that the State will not add any points of access to, or exit from, the project in addition to