§ 202. — Allocations.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 23USC202]
TITLE 23--HIGHWAYS
CHAPTER 2--OTHER HIGHWAYS
Sec. 202. Allocations
(a) On October 1 of each fiscal year, the Secretary shall allocate
the sums authorized to be appropriated for such fiscal year for forest
development roads and trails according to the relative needs of the
various national forests. Such allocation shall be consistent with the
renewable resource and land use planning for the various national
forests.
(b) On October 1 of each fiscal year, the Secretary shall allocate
34 percent of the sums authorized to be appropriated for such fiscal
year for public lands highways among those States having unappropriated
or unreserved public lands, nontaxable Indian lands or other Federal
reservations, on the basis of need in such States, respectively, as
determined by the Secretary upon application of the State transportation
departments of the respective States. The Secretary shall give
preference to those projects which are significantly impacted by Federal
land and resource management activities which are proposed by a State
which contains at least 3 percent of the total public lands in the
Nation. The Secretary shall allocate 66 percent of the remainder of the
authorization for public lands highways for each fiscal year as is
provided in section 134 of the Federal-Aid Highway Act of 1987, and with
respect to these allocations the Secretary shall give equal
consideration to projects that provide access to and within the National
Forest System, as identified by the Secretary of Agriculture through
renewable resources and land use planning and the impact of such
planning on existing transportation facilities.
(c) On October 1 of each fiscal year, the Secretary shall allocate
the sums authorized to be appropriated for such fiscal year for park
roads and parkways each according to the relative needs of the various
elements of the national park system, taking into consideration the need
for access as identified through land use planning and the impact of
such planning on existing transportation facilities.
(d) Indian Reservation Roads.--
(1) For fiscal years ending before october 1, 1999.--On October
1 of each fiscal year ending before October 1, 1999, the Secretary
shall allocate the sums authorized to be appropriated for such
fiscal year for Indian reservation roads according to the relative
needs of the various reservations as jointly identified by the
Secretary and the Secretary of the Interior.
(2) Fiscal year 2000 and thereafter.--
(A) In general.--All funds authorized to be appropriated for
Indian reservation roads shall be allocated among Indian tribes
for fiscal year 2000 and each subsequent fiscal year in
accordance with a formula established by the Secretary of the
Interior under a negotiated rulemaking procedure under
subchapter III of chapter 5 of title 5.
(B) Regulations.--Notwithstanding sections 563(a) and 565(a)
of title 5, the Secretary of the Interior shall issue
regulations governing the Indian reservation roads program, and
establishing the funding formula for fiscal year 2000 and each
subsequent fiscal year under this paragraph, in accordance with
a negotiated rulemaking procedure under subchapter III of
chapter 5 of title 5. The regulations shall be issued in final
form not later than April 1, 1999, and shall take effect not
later than October 1, 1999.
(C) Negotiated rulemaking committee.--In establishing a
negotiated rulemaking committee to carry out subparagraph (B),
the Secretary of the Interior shall--
(i) apply the procedures under subchapter III of chapter
5 of title 5 in a manner that reflects the unique
government-to-government relationship between the Indian
tribes and the United States; and
(ii) ensure that the membership of the committee
includes only representatives of the Federal Government and
of geographically diverse small, medium, and large Indian
tribes.
(D) Basis for funding formula.--The funding formula
established for fiscal year 2000 and each subsequent fiscal year
under this paragraph shall be based on factors that reflect--
(i) the relative needs of the Indian tribes, and
reservation or tribal communities, for transportation
assistance; and
(ii) the relative administrative capacities of, and
challenges faced by, various Indian tribes, including the
cost of road construction in each Bureau of Indian Affairs
area, geographic isolation and difficulty in maintaining
all-weather access to employment, commerce, health, safety,
and educational resources.
(3) Contracts and agreements with indian tribes.--
(A) In general.--Notwithstanding any other provision of law
or any interagency agreement, program guideline, manual, or
policy directive, all funds made available under this title for
Indian reservation roads and for highway bridges located on
Indian reservation roads to pay for the costs of programs,
services, functions, and activities, or portions thereof, that
are specifically or functionally related to the cost of
planning, research, engineering, and construction of any
highway, road, bridge, parkway, or transit facility that
provides access to or is located within the reservation or
community of an Indian tribe shall be made available, upon
request of the Indian tribal government, to the Indian tribal
government for contracts and agreements for such planning,
research, engineering, and construction in accordance with the
Indian Self-Determination and Education Assistance Act.
(B) Exclusion of agency participation.--Funds for programs,
functions, services, or activities, or portions thereof,
including supportive administrative functions that are otherwise
contractible to which subparagraph (A) applies, shall be paid in
accordance with subparagraph (A) without regard to the
organizational level at which the Department of the Interior
that has previously carried out such programs, functions,
services, or activities.
(4) Reservation of funds.--
(A) Nationwide priority program.--The Secretary shall
establish a nationwide priority program for improving deficient
Indian reservation road bridges.
(B) Reservation.--Of the amounts authorized to be
appropriated for Indian reservation roads for each fiscal year,
the Secretary, in cooperation with the Secretary of the
Interior, shall reserve not less than $13,000,000 for projects
to replace, rehabilitate, seismically retrofit, paint, apply
calcium magnesium acetate, sodium acetate/formate, or other
environmentally acceptable, minimally corrosive anti-icing and
de-icing compositions or install scour countermeasures for
deficient Indian reservation road bridges, including multiple-
pipe culverts.
(C) Eligible bridges.--To be eligible to receive funding
under this subsection, a bridge described in subparagraph (A)
must--
(i) have an opening of 20 feet or more;
(ii) be on an Indian reservation road;
(iii) be unsafe because of structural deficiencies,
physical deterioration, or functional obsolescence; and
(iv) be recorded in the national bridge inventory
administered by the Secretary under subsection (b).
(D) Approval requirement.--Funds to carry out Indian
reservation road bridge projects under this subsection shall be
made available only on approval of plans, specifications, and
estimates by the Secretary.
(e) Refuge Roads.--On October 1 of each fiscal year, the Secretary
shall allocate the sums made available for that fiscal year for refuge
roads according to the relative needs of the various refuges in the
National Wildlife Refuge System, and taking into consideration--
(1) the comprehensive conservation plan for each refuge;
(2) the need for access as identified through land use planning;
and
(3) the impact of land use planning on existing transportation
facilities.
(Pub. L. 85-767, Aug. 27, 1958, 72 Stat. 906; Pub. L. 94-280, title I,
Sec. 133, May 5, 1976, 90 Stat. 441; Pub. L. 97-424, title I,
Sec. 126(a), Jan. 6, 1983, 96 Stat. 2113; Pub. L. 102-240, title I,
Sec. 1032(a), Dec. 18, 1991, 105 Stat. 1974; Pub. L. 105-178, title I,
Secs. 1115(b), (e)(2), (f)(2), 1212(a)(2)(A)(ii), June 9, 1998, 112
Stat. 154, 158, 193; Pub. L. 105-206, title IX, Sec. 9002(i), July 22,
1998, 112 Stat. 836.)
References in Text
Section 134 of the Federal-Aid Highway Act of 1987, referred to in
subsec. (b), is section 134 of Pub. L. 100-17, which is set out below.
The Indian Self-Determination and Education Assistance Act, referred
to in subsec. (d)(3)(A), is Pub. L. 93-638, Jan. 4, 1975, 88 Stat. 2203,
as amended, which is classified principally to subchapter II (Sec. 450
et seq.) of chapter 14 of Title 25, Indians. For complete classification
of this Act to the Code, see Short Title note set out under section 450
of Title 25 and Tables.
Amendments
1998--Subsec. (b). Pub. L. 105-178, Sec. 1212(a)(2)(A)(ii),
substituted ``State transportation departments'' for ``State highway
departments''.
Subsec. (d). Pub. L. 105-178, Sec. 1115(b), inserted subsec.
heading, designated existing provisions as par. (1), inserted par.
heading, realigned margins, inserted ``ending before October 1, 1999''
after ``each fiscal year'', and added pars. (2) to (4).
Subsec. (d)(4)(B). Pub. L. 105-178, Sec. 1115(f)(2), as added by
Pub. L. 105-206, Sec. 9002(i), substituted ``, sodium acetate/formate,
or other environmentally acceptable, minimally corrosive anti-icing and
de-icing compositions'' for ``to, apply sodium acetate/formate de-icer
to,''.
Subsec. (e). Pub. L. 105-178, Sec. 1115(e)(2), added subsec. (e).
1991--Subsec. (a). Pub. L. 102-240, Sec. 1032(a)(1), (2),
redesignated subsec. (b) as (a) and struck out former subsec. (a) which
read as follows: ``On October 1 of each fiscal year, the Secretary shall
allocate the sums authorized to be appropriated for such fiscal year for
forest highways according to the relative needs of the various elements
of the national forest system as determined by the Secretary, taking
into consideration the need for access as identified by the Secretary of
Agriculture through renewable resource and land use planning, and the
impact of such planning on existing transportation facilities.''
Subsec. (b). Pub. L. 102-240, Sec. 1032(a)(2)-(4), redesignated
subsec. (c) as (b), inserted ``34 percent of'' after ``allocate'', and
substituted for period at end ``which are proposed by a State which
contains at least 3 percent of the total public lands in the Nation. The
Secretary shall allocate 66 percent of the remainder of the
authorization for public lands highways for each fiscal year as is
provided in section 134 of the Federal-Aid Highway Act of 1987, and with
respect to these allocations the Secretary shall give equal
consideration to projects that provide access to and within the National
Forest System, as identified by the Secretary of Agriculture through
renewable resources and land use planning and the impact of such
planning on existing transportation facilities.'' Former subsec. (b)
redesignated (a).
Subsecs. (c) to (e). Pub. L. 102-240, Sec. 1032(a)(2), redesignated
subsecs. (d) and (e) as (c) and (d), respectively. Former subsec. (c)
redesignated (b).
1983--Subsec. (a). Pub. L. 97-424 substituted provisions relating to
allocation of sums authorized to be appropriated by the Secretary for
provisions relating to apportionment of sums authorized to be
appropriated by the Secretary.
Subsec. (b). Pub. L. 97-424 substituted provisions requiring
allocation of sums on October 1 of each fiscal year to be consistent
with renewable resource and land use planning for provisions requiring
allocation of sums to take into consideration existing transportation
facilities, value of resources served, fire danger, and road and trail
construction difficulties.
Subsec. (c). Pub. L. 97-424 inserted provisions requiring allocation
of sums on October 1 of each fiscal year, and substituted provisions
requiring preferences to be given to projects impacted by Federal land
and resource management for provisions requiring preferences to be given
to projects located on a Federal-aid system.
Subsecs. (d), (e). Pub. L. 97-424 added subsecs. (d) and (e).
1976--Subsec. (a). Pub. L. 94-280 substituted introductory ``On
October 1 of each fiscal year'' for ``On or before January 1 next
preceding the commencement of each fiscal year''.
Effective Date of 1998 Amendment
Title IX of Pub. L. 105-206 effective simultaneously with enactment
of Pub. L. 105-178 and to be treated as included in Pub. L. 105-178 at
time of enactment, and provisions of Pub. L. 105-178, as in effect on
day before July 22, 1998, that are amended by title IX of Pub. L. 105-
206 to be treated as not enacted, see section 9016 of Pub. L. 105-206,
set out as a note under section 101 of this title.
Effective Date of 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.
Additional Authorization of Contract Authority for States With Indian
Reservations
Pub. L. 105-178, title I, Sec. 1214(d), June 9, 1998, 112 Stat. 205,
provided that:
``(1) Availability to states.--Not later than October 1 of each
fiscal year, funds made available under paragraph (5) for the fiscal
year shall be made available by the Secretary, in equal amounts, to each
State that has within the boundaries of the State all or part of an
Indian reservation having a land area of 10,000,000 acres or more.
``(2) Availability to eligible counties.--
``(A) In general.--Each fiscal year, each county that is located
in a State to which funds are made available under paragraph (1),
and that has in the county a public road described in subparagraph
(B), shall be eligible to apply to the State for all or a portion of
the funds made available to the State under this subsection to be
used by the county to maintain such roads.
``(B) Roads.--A public road referred to in subparagraph (A) is a
public road that--
``(i) is within, adjacent to, or provides access to an
Indian reservation described in paragraph (1);
``(ii) is used by a school bus to transport children to or
from a school or Headstart program carried out under the Head
Start Act (42 U.S.C. 9831 et seq.); and
``(iii) is maintained by the county in which the public road
is located.
``(C) Allocation among eligible counties.--
``(i) In general.--Except as provided in clause (ii), each
State that receives funds under paragraph (1) shall provide
directly to each county that applies for funds the amount that
the county requests in the application.
``(ii) Allocation among eligible counties.--If the total
amount of funds applied for under this subsection by eligible
counties in a State exceeds the amount of funds available to the
State, the State shall equitably allocate the funds among the
eligible counties that apply for funds.
``(3) Supplementary funding.--For each fiscal year, the Secretary
shall ensure that funding made available under this subsection
supplements (and does not supplant)--
``(A) any obligation of funds by the Bureau of Indian Affairs
for road maintenance programs on Indian reservations; and
``(B) any funding provided by a State to a county for road
maintenance programs in the county.
``(4) Use of unallocated funds.--Any portion of the funds made
available to a State under this subsection that is not made available to
counties within 1 year after the funds are made available to the State
shall be apportioned among the States in accordance with section 104(b)
of title 23, United States Code.
``(5) Funding.--
``(A) In general.--There is authorized to be appropriated from
the Highway Trust Fund (other than the Mass Transit Account) to
carry out this subsection $1,500,000 for each of fiscal years 1998
through 2003.
``(B) Contract authority.--Funds authorized by this subsection
shall be available for obligation in the same manner as if the funds
were apportioned under chapter 1 of title 23, United States Code.''
Indian Reservation Roads
Section 1032(d) of Pub. L. 102-240 provided that: ``Notwithstanding
any other provision of law, funds allocated for Indian reservation roads
may be used for the purpose of funding road projects on roads of
tribally controlled postsecondary vocational institutions.''
Pub. L. 102-240, title I, Sec. 1042, Dec. 18, 1991, 105 Stat. 1993,
directed Secretary of Transportation to conduct a study on funding needs
for Indian reservation roads and to report to Congress on results of the
study not later than one year after Dec. 18, 1991, prior to repeal by
Pub. L. 105-362, title XV, Sec. 1501(c), Nov. 10, 1998, 112 Stat. 3294.
Study and Report on Method of Allocating Funds
Section 1032(e) of Pub. L. 102-240 provided that: ``The Secretary
shall undertake a study to determine if the method for allocating funds
authorized for Federal lands highways is adequate to meet the relative
transportation needs of the Federal lands served. The report shall be
submitted within 2 years of the date of the enactment of this Act [Dec.
18, 1991].''
Forest Highways
Pub. L. 100-17, title I, Sec. 134, Apr. 2, 1987, 101 Stat. 173, as
amended by Pub. L. 100-202, Sec. 101(l) [title III, Sec. 348(a)], Dec.
22, 1987, 101 Stat. 1329-358, 1329-388, provided that: ``Notwithstanding
section 202(a) of title 23, United States Code, the Secretary shall,
after making the transfer provided by section 204(g) of such title, as
soon as practicable after the date of the enactment of this Act [Apr. 2,
1987] in fiscal year 1987 and on October 1 of each of fiscal years 1988,
1989, 1990, and 1991, allocate 66 percent of the remainder of the
authorization for forest highways provided for such fiscal year by this
Act [see Short Title of 1987 Amendment note set out under section 101 of
this title] in the same percentage as the amounts allocated for
expenditure in each State and the Commonwealth of Puerto Rico from funds
authorized for forest highways for the fiscal year ending June 30, 1958,
adjusted (1) to eliminate the 0.003243547 percent for the State of Iowa
to the State by deed executed May 26, 1964, and (2) to redistribute the
percentage formerly apportioned to the State of Iowa to other
participating States on a proportional basis. The remaining funds
authorized to be appropriated for forest highways for such fiscal year
shall be allocated pursuant to section 202(a) of such title.''
Section Referred to in Other Sections
This section is referred to in section 134 of this title; title 49
section 5303.
