§ 133. — Surface transportation program.
[Laws in effect as of January 7, 2003]
[Document not affected by Public Laws enacted between
January 7, 2003 and December 19, 2003]
[CITE: 23USC133]
TITLE 23--HIGHWAYS
CHAPTER 1--FEDERAL-AID HIGHWAYS
SUBCHAPTER I--GENERAL PROVISIONS
Sec. 133. Surface transportation program
(a) Establishment.--The Secretary shall establish a surface
transportation program in accordance with this section.
(b) Eligible Projects.--A State may obligate funds apportioned to it
under section 104(b)(3) for the surface transportation program only for
the following:
(1) Construction, reconstruction, rehabilitation, resurfacing,
restoration, and operational improvements for highways (including
Interstate highways) and bridges (including bridges on public roads
of all functional classifications), including any such construction
or reconstruction necessary to accommodate other transportation
modes, and including the seismic retrofit and painting of and
application of calcium magnesium acetate, sodium acetate/formate, or
other environmentally acceptable, minimally corrosive anti-icing and
de-icing compositions on bridges and approaches thereto and other
elevated structures, mitigation of damage to wildlife, habitat, and
ecosystems caused by a transportation project funded under this
title.
(2) Capital costs for transit projects eligible for assistance
under chapter 53 of title 49, including vehicles and facilities,
whether publicly or privately owned, that are used to provide
intercity passenger service by bus.
(3) Carpool projects, fringe and corridor parking facilities and
programs, bicycle transportation and pedestrian walkways in
accordance with section 217, and the modification of public
sidewalks to comply with the Americans with Disabilities Act of 1990
(42 U.S.C. 12101 et seq.).
(4) Highway and transit safety infrastructure improvements and
programs, hazard eliminations, projects to mitigate hazards caused
by wildlife, and railway-highway grade crossings.
(5) Highway and transit research and development and technology
transfer programs.
(6) Capital and operating costs for traffic monitoring,
management, and control facilities and programs.
(7) Surface transportation planning programs.
(8) Transportation enhancement activities.
(9) Transportation control measures listed in section
108(f)(1)(A) (other than clause (xvi)) of the Clean Air Act (42
U.S.C. 7408(f)(1)(A)).
(10) Development and establishment of management systems under
section 303.
(11) In accordance with all applicable Federal law and
regulations, participation in natural habitat and wetlands
mitigation efforts related to projects funded under this title,
which may include participation in natural habitat and wetlands
mitigation banks; contributions to statewide and regional efforts to
conserve, restore, enhance, and create natural habitats and
wetlands; and development of statewide and regional natural habitat
and wetlands conservation and mitigation plans, including any such
banks, efforts, and plans authorized pursuant to the Water Resources
Development Act of 1990 (including crediting provisions).
Contributions to such mitigation efforts may take place concurrent
with or in advance of project construction. Contributions toward
these efforts may occur in advance of project construction only if
such efforts are consistent with all applicable requirements of
Federal law and regulations and State transportation planning
processes. With respect to participation in a natural habitat or
wetland mitigation effort related to a project funded under this
title that has an impact that occurs within the service area of a
mitigation bank, preference shall be given, to the maximum extent
practicable, to the use of the mitigation bank if the bank contains
sufficient available credits to offset the impact and the bank is
approved in accordance with the Federal Guidance for the
Establishment, Use and Operation of Mitigation Banks (60 Fed. Reg.
58605 (November 28, 1995)) or other applicable Federal law
(including regulations).
(13) \1\ Infrastructure-based intelligent transportation systems
capital improvements.
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\1\ So in original. No par. (12) has been enacted.
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(14) Environmental restoration and pollution abatement projects
(including the retrofit or construction of storm water treatment
systems) to address water pollution or environmental degradation
caused or contributed to by transportation facilities, which
projects shall be carried out when the transportation facilities are
undergoing reconstruction, rehabilitation, resurfacing, or
restoration; except that the expenditure of funds under this section
for any such environmental restoration or pollution abatement
project shall not exceed 20 percent of the total cost of the
reconstruction, rehabilitation, resurfacing, or restoration project.
(c) Location of Projects.--Except as provided in subsection (b)(1),
surface transportation program projects (other than those described in
subsections (b)(3) and (4)) may not be undertaken on roads functionally
classified as local or rural minor collectors, unless such roads are on
a Federal-aid highway system on January 1, 1991, and except as approved
by the Secretary.
(d) Allocations of Apportioned Funds.--
(1) For safety programs.--10 percent of the funds apportioned to
a State under section 104(b)(3) for the surface transportation
program for a fiscal year shall only be available for carrying out
sections 130 and 152 of this title. Of the funds set aside under the
preceding sentence, the State shall reserve in such fiscal year an
amount of such funds for carrying out each such section which is not
less than the amount of funds apportioned to the State in fiscal
year 1991 under such section.
(2) For transportation enhancement activities.--10 percent of
the funds apportioned to a State under section 104(b)(3) for a
fiscal year shall only be available for transportation enhancement
activities.
(3) Division between urbanized areas of over 200,000 population
and other areas.--
(A) General rule.--Except as provided in subparagraphs (C)
and (D), 62.5 percent of the remaining 80 percent of the funds
apportioned to a State under section 104(b)(3) for a fiscal year
shall be obligated under this section--
(i) in urbanized areas of the State with an urbanized
area population of over 200,000, and
(ii) in other areas of the State,
in proportion to their relative share of the State's population.
The remaining 37.5 percent may be obligated in any area of the
State. Funds attributed to an urbanized area under clause (i)
may be obligated in the metropolitan area established under
section 134 which encompasses the urbanized area.
(B) Special rule for areas of less than 5,000 population.--
Of the amounts required tobe \2\ obligated under subparagraph
(A)(ii), the State shall obligate in areas of the State (other
than urban areas with a population greater than 5,000) an amount
which is not less than 110 percent of the amount of funds
apportioned to the State for the Federal-aid secondary system
for fiscal year 1991.
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\2\ So in original. Probably should be ``to be''.
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(C) Special rule for certain states.--In the case of a State
in which--
(i) greater than 80 percent of the population of the
State is located in 1 or more metropolitan statistical
areas, and
(ii) greater than 80 percent of the land area of such
State is owned by the United States,
the 62.5 percentage specified in the first sentence of
subparagraph (A) shall be 35 percent and the percentage
specified in the second sentence of subparagraph (A) shall be 65
percent.
(D) Noncontiguous states exemption.--Subparagraph (A) shall
not apply to Hawaii and Alaska \3\
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\3\ So in original. Probably should be followed by a period.
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(E) Distribution between urbanized areas of over 200,000
population.--The amount of funds which a State is required to
obligate under subparagraph (A)(i) shall be obligated in
urbanized areas described in subparagraph (A)(i) based on the
relative population of such areas; except that the State may
obligate such funds based on other factors if the State and the
relevant metropolitan planning organizations jointly apply to
the Secretary for the permission to do so and the Secretary
grants the request.
(4) Applicability of planning requirements.--Programming and
expenditure of funds for projects under this section shall be
consistent with the requirements of sections 134 and 135 of this
title.
(5) Applicability of certain requirements to third party
sellers.--
(A) In general.--Except as provided in subparagraphs (B) and
(C), in the case of a transportation enhancement activity funded
from the allocation required under paragraph (2), if real
property or an interest in real property is to be acquired from
a qualified organization exclusively for conservation purposes
(as determined under section 170(h) of the Internal Revenue Code
of 1986), the organization shall be considered to be the owner
of the property for the purpose of the Uniform Relocation
Assistance and Real Property Acquisition Policies Act of 1970
(42 U.S.C. 4601 et seq.).
(B) Federal approval prior to involvement of qualified
organization.--If Federal approval of the acquisition of the
real property or interest predates the involvement of a
qualified organization described in subparagraph (A) in the
acquisition of the property, the organization shall be
considered to be an acquiring agency or person as described in
section 24.101(a)(2) of title 49, Code of Federal Regulations,
for the purpose of the Uniform Relocation Assistance and Real
Property Acquisition Policies Act of 1970.
(C) Acquisitions on behalf of recipients of federal funds.--
If a qualified organization described in subparagraph (A) has
contracted with a State transportation department or other
recipient of Federal funds to acquire the real property or
interest on behalf of the recipient, the organization shall be
considered to be an agent of the recipient for the purpose of
the Uniform Relocation Assistance and Real Property Acquisition
Policies Act of 1970.
(e) Administration.--
(1) Noncompliance.--If the Secretary determines that a State or
local government has failed to comply substantially with any
provision of this section, the Secretary shall notify the State
that, if the State fails to take corrective action within 60 days
from the date of receipt of the notification, the Secretary will
withhold future apportionments under section 104(b)(3) until the
Secretary is satisfied that appropriate corrective action has been
taken.
(2) Program approval.--
(A) Submission of project agreement.--For each fiscal year,
each State shall submit a project agreement that--
(i) certifies that the State will meet all the
requirements of this section; and
(ii) notifies the Secretary of the amount of obligations
needed to carry out the program under this section.
(B) Request for adjustments of amounts.--Each State shall
request from the Secretary such adjustments to the amount of
obligations referred to in subparagraph (A)(ii) as the State
determines to be necessary.
(C) Effect of approval by the secretary.--Approval by the
Secretary of a project agreement under subparagraph (A) shall be
deemed a contractual obligation of the United States to pay
surface transportation program funds made available under this
title.
(3) Payments.--
(A) In general.--Except as provided in subparagraph (B), the
Secretary shall make payments to a State of costs incurred by
the State for the surface transportation program in accordance
with procedures to be established by the Secretary.
(B) Advance payment option for transportation enhancement
activities.--
(i) In general.--The Secretary may advance funds to the
State for transportation enhancement activities funded from
the allocation required by subsection (d)(2) for a fiscal
year.
(ii) Limitation on amounts.--Amounts advanced under this
subparagraph shall be limited to such amounts as are
necessary to make prompt payments for project costs.
(iii) Effect on other requirements.--This subparagraph
shall not exempt a State from other requirements of this
title relating to the surface transportation program.
(4) Population determinations.--The Secretary shall use
estimates prepared by the Secretary of Commerce when determining
population figures for purposes of this section.
(5) Transportation enhancement activities.--
(A) Categorical exclusions.--To the extent appropriate, the
Secretary shall develop categorical exclusions from the
requirement that an environmental assessment or an environmental
impact statement under section 102 of the National Environmental
Policy Act of 1969 (42 U.S.C. 4332) be prepared for
transportation enhancement activities funded from the allocation
required by subsection (d)(2).
(B) Nationwide programmatic agreement.--The Secretary, in
consultation with the National Conference of State Historic
Preservation Officers and the Advisory Council on Historic
Preservation established under title II of the National Historic
Preservation Act (16 U.S.C. 470i et seq.), shall develop a
nationwide programmatic agreement governing the review of
transportation enhancement activities funded from the allocation
required by subsection (d)(2), in accordance with--
(i) section 106 of such Act (16 U.S.C. 470f); and
(ii) the regulations of the Advisory Council on Historic
Preservation.
(C) Cost sharing.--
(i) Required aggregate non-federal share.--The average
annual non-Federal share of the total cost of all projects
to carry out transportation enhancement activities in a
State for a fiscal year shall be not less than the non-
Federal share authorized for the State under section 120(b).
(ii) Innovative financing.--Subject to clause (i),
notwithstanding section 120--
(I) funds from other Federal agencies and the value
of other contributions (as determined by the Secretary)
may be credited toward the non-Federal share of the
costs of a project to carry out a transportation
enhancement activity;
(II) the non-Federal share for such a project may be
calculated on a project, multiple-project, or program
basis; and
(III) the Federal share of the cost of an individual
project to which subclause (I) or (II) applies may be up
to 100 percent.
(f) Obligation Authority.--
(1) In general.--A State that is required to obligate in an
urbanized area with an urbanized area population of over 200,000
individuals under subsection (d) funds apportioned to the State
under section 104(b)(3) shall make available during the period of
fiscal years 1998 through 2000 and the period of fiscal years 2001
through 2003 an amount of obligation authority distributed to the
State for Federal-aid highways and highway safety construction
programs for use in the area that is equal to the amount obtained by
multiplying--
(A) the aggregate amount of funds that the State is required
to obligate in the area under subsection (d) during the period;
and
(B) the ratio that--
(i) the aggregate amount of obligation authority
distributed to the State for Federal-aid highways and
highway safety construction programs during the period;
bears to
(ii) the total of the sums apportioned to the State for
Federal-aid highways and highway safety construction
programs (excluding sums not subject to an obligation
limitation) during the period.
(2) Joint responsibility.--Each State, each affected
metropolitan planning organization, and the Secretary shall jointly
ensure compliance with paragraph (1).
(Added Pub. L. 102-240, title I, Sec. 1007(a)(1), Dec. 18, 1991, 105
Stat. 1927; amended Pub. L. 103-429, Sec. 3(4), Oct. 31, 1994, 108 Stat.
4377; Pub. L. 104-59, title III, Secs. 315, 316, Nov. 28, 1995, 109
Stat. 586, 587; Pub. L. 105-178, title I, Secs. 1108(a)-(e),
1212(a)(2)(A)(i), June 9, 1998, 112 Stat. 138-140, 193.)
References in Text
The Americans with Disabilities Act of 1990, referred to in subsec.
(b)(3), is Pub. L. 101-336, July 26, 1990, 104 Stat. 327, as amended,
which is classified principally to chapter 126 (Sec. 12101 et seq.) of
Title 42, The Public Health and Welfare. For complete classification of
this Act to the Code, see Short Title note set out under section 12101
of Title 42 and Tables.
The Water Resources Development Act of 1990, referred to in subsec.
(b)(11), is Pub. L. 101-640, Nov. 28, 1990, 104 Stat. 4604. For complete
classification of this Act to the Code, see Short Title of 1990
Amendment note set out under section 2201 of Title 33, Navigation and
Navigable Waters, and Tables.
The Uniform Relocation Assistance and Real Property Acquisition
Policies Act of 1970, referred to in subsec. (d)(5), is Pub. L. 91-646,
Jan. 2, 1971, 84 Stat. 1894, as amended, which is classified generally
to chapter 61 (Sec. 4601 et seq.) of Title 42, The Public Health and
Welfare. For complete classification of this Act to the Code, see Short
Title note set out under section 4601 of Title 42 and Tables.
Section 170(h) of the Internal Revenue Code of 1986, referred to in
subsec. (d)(5)(A), is classified to section 170(h) of Title 26, Internal
Revenue Code.
The National Historic Preservation Act, referred to in subsec.
(e)(5)(B), is Pub. L. 89-665, Oct. 15, 1966, 80 Stat. 915, as amended.
Title II of the Act is classified generally to part B (Sec. 470i et
seq.) of subchapter II of chapter 1A of Title 16, Conservation. For
complete classification of this Act to the Code, see section 470 of
Title 16 and Tables.
Prior Provisions
A prior section 133, Pub. L. 87-866, Sec. 5(a), Oct. 23, 1962, 76
Stat. 1146, provided for relocation assistance for persons displaced by
Federal-aid highway construction, prior to repeal by Pub. L. 90-495,
Sec. 37, Aug. 23, 1968, 82 Stat. 836, effective July 1, 1970. See
section 501 et seq. of this title.
Amendments
1998--Subsec. (b)(1). Pub. L. 105-178, Sec. 1108(a)(1), inserted ``,
sodium acetate/formate, or other environmentally acceptable, minimally
corrosive anti-icing and de-icing compositions'' after ``calcium
magnesium acetate''.
Subsec. (b)(2). Pub. L. 105-178, Sec. 1108(a)(2), substituted ``,
including vehicles and facilities, whether publicly or privately owned,
that are used to provide intercity passenger service by bus'' for ``and
publicly owned intracity or intercity bus terminals and facilities''.
Subsec. (b)(3). Pub. L. 105-178, Sec. 1108(a)(3), substituted
``bicycle'' for ``and bicycle'' and inserted before period at end ``,
and the modification of public sidewalks to comply with the Americans
with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.)''.
Subsec. (b)(4). Pub. L. 105-178, Sec. 1108(a)(4), substituted
``Highway and transit safety infrastructure'' for ``Highway and transit
safety''.
Subsec. (b)(9). Pub. L. 105-178, Sec. 1108(a)(5), substituted
``section 108(f)(1)(A) (other than clause (xvi)) of the Clean Air Act
(42 U.S.C. 7408(f)(1)(A))'' for ``section 108(f)(1)(A) (other than
clauses (xii) and (xvi)) of the Clean Air Act''.
Subsec. (b)(11). Pub. L. 105-178, Sec. 1108(a)(6), in first
sentence, inserted ``natural habitat and'' after ``participation in'' in
two places and also before ``wetlands conservation and mitigation
plans'' and substituted ``enhance, and create natural habitats and
wetlands'' for ``enhance and create wetlands'' and inserted at end
``With respect to participation in a natural habitat or wetland
mitigation effort related to a project funded under this title that has
an impact that occurs within the service area of a mitigation bank,
preference shall be given, to the maximum extent practicable, to the use
of the mitigation bank if the bank contains sufficient available credits
to offset the impact and the bank is approved in accordance with the
Federal Guidance for the Establishment, Use and Operation of Mitigation
Banks (60 Fed. Reg. 58605 (November 28, 1995)) or other applicable
Federal law (including regulations).''
Subsec. (b)(13), (14). Pub. L. 105-178, Sec. 1108(a)(7), added pars.
(13) and (14).
Subsec. (d)(3)(D). Pub. L. 105-178, Sec. 1108(b)(1), substituted
``Hawaii and Alaska'' for ``any State which is noncontiguous with the
continental United States.''
Subsec. (d)(5)(C). Pub. L. 105-178, Sec. 1212(a)(2)(A)(i),
substituted ``State transportation department'' for ``State highway
department''.
Subsec. (e)(2). Pub. L. 105-178, Sec. 1108(c), added par. (2) and
struck out heading and text of former par. (2). Text read as follows:
``The Governor of each State shall certify before the beginning of each
quarter of a fiscal year that the State will meet all the requirements
of this section and shall notify the Secretary of the amount of
obligations expected to be incurred for surface transportation program
projects during such quarter. A State may request adjustment to the
obligation amounts later in each of such quarters. Acceptance of the
notification and certification shall be deemed a contractual obligation
of the United States for the payment of the surface transportation
program funds expected to be obligated by the State in such quarter for
projects not subject to review by the Secretary under this chapter.''
Subsec. (e)(3)(A). Pub. L. 105-178, Sec. 1108(d), struck out at end
``Payments shall not exceed the Federal share of costs incurred as of
the date the State requests payments.''
Subsec. (e)(3)(B)(i). Pub. L. 105-178, Sec. 1108(b)(2)(A), struck
out before period at end ``if the Secretary certifies for the fiscal
year that the State has authorized and uses a process for the selection
of transportation enhancement projects that involves representatives of
affected public entities, and private citizens, with expertise related
to transportation enhancement activities''.
Subsec. (e)(5)(C). Pub. L. 105-178, Sec. 1108(b)(2)(B), added
subpar. (C).
Subsec. (f). Pub. L. 105-178, Sec. 1108(e), which directed general
amendment of section 133 to read as subsec. (f), was executed by
amending heading and text of section 133(f) generally to reflect the
probable intent of Congress. Prior to amendment, subsec. (f) read as
follows:
``(f) Allocation of Obligation Authority.--A State which is required
to obligate in an urbanized area with an urbanized area population of
over 200,000 under subsection (d) funds apportioned to it under section
104(b)(3) shall allocate during the 6-fiscal year period 1992 through
1997 an amount of obligation authority distributed to the State for
Federal-aid highways and highway safety construction for use in such
area determined by multiplying--
``(1) the aggregate amount of funds which the State is required
to obligate in such area under subsection (d) during such period; by
``(2) the ratio of the aggregate amount of obligation authority
distributed to the State for Federal-aid highways and highway safety
construction during such period to the total sums apportioned to the
State for Federal-aid highways and highway safety construction
(excluding sums not subject to an obligation limitation) during such
period.''
1995--Subsec. (d)(5). Pub. L. 104-59, Sec. 315, added par. (5).
Subsec. (e)(3). Pub. L. 104-59, Sec. 316(1), designated existing
provisions as subpar. (A), inserted subpar. (A) heading, realigned
margins, substituted ``Except as provided in subparagraph (B), the'' for
``The'', and added subpar. (B).
Subsec. (e)(5). Pub. L. 104-59, Sec. 316(2), added par. (5).
1994--Subsec. (b)(2). Pub. L. 103-429 substituted ``chapter 53 of
title 49'' for ``the Federal Transit Act''.
Effective Date
Section 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 an Effective Date of 1991 Amendment note under section
104 of this title.
Division of STP Funds for Areas of Less Than 5,000 Population
Pub. L. 105-178, title I, Sec. 1108(f), June 9, 1998, 112 Stat. 141,
provided that:
``(1) Special rule.--Notwithstanding section 133(c) of title 23,
United States Code, and except as provided in paragraph (2), up to 15
percent of the amounts required to be obligated under section
133(d)(3)(B) of such title for each of fiscal years 1998 through 2003
may be obligated on roads functionally classified as minor collectors.
``(2) Suspension.--The Secretary may suspend the application of
paragraph (1) if the Secretary determines that paragraph (1) is being
used excessively.''
Encouragement of Use of Youth Conservation or Service Corps
Pub. L. 105-178, title I, Sec. 1108(g), June 9, 1998, 112 Stat. 141,
provided that: ``The Secretary shall encourage the States to enter into
contracts and cooperative agreements with qualified youth conservation
or service corps to perform appropriate transportation enhancement
activities under chapter 1 of title 23, United States Code.''
Section Referred to in Other Sections
This section is referred to in sections 103, 104, 105, 106, 126,
149, 157, 160, 322 of this title.
