§ 115. — Advance construction.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 23USC115]
TITLE 23--HIGHWAYS
CHAPTER 1--FEDERAL-AID HIGHWAYS
SUBCHAPTER I--GENERAL PROVISIONS
Sec. 115. Advance construction
(a) Congestion Mitigation and Air Quality Improvement, Surface
Transportation, Bridge, Planning, and Research Projects.--
(1) General rule.--Subject to paragraph (2), when a State--
(A)(i) has obligated all funds apportioned or allocated to
it under section 104(b)(2), 104(b)(3), 104(f), 144, or 505 of
this title, or
(ii) has used or demonstrates that it will use all
obligation authority allocated to it for Federal-aid highways
and highway safety construction, and
(B) proceeds with a project funded under such an
apportionment or allocation without the aid of Federal funds in
accordance with all procedures and all requirements applicable
to such a project, except insofar as such procedures and
requirements limit the State to implementation of projects with
the aid of Federal funds previously apportioned or allocated to
it or limit a State to implementation of a project with
obligation authority previously allocated to it for Federal-aid
highways and highway safety construction,
the Secretary, upon approval of an application of the State, is
authorized to pay to the State the Federal share of the cost of the
project when additional funds are apportioned or allocated to the
State under such section or when additional obligation authority is
allocated to it.
(2) Plans, specifications, and applicable standards.--The
Secretary may only make payments to a State with respect to a
project if--
(A) prior to commencement of the project the Secretary
approves the project in the same manner as the Secretary
approves other projects, and
(B) the project conforms to the applicable standards under
this title.
(b) Interstate and National Highway System Projects.--When a State
proceeds to construct any project on the National Highway System or the
Interstate System without the aid of Federal funds in accordance with
all procedures and all requirements applicable to such a project, except
insofar as such procedures and requirements limit the State to the
construction of projects with the aid of Federal funds previously
apportioned to it, the Secretary, upon approval of application of the
State, is authorized to pay to the State the Federal share of the cost
of construction of the project when additional funds are apportioned to
the State under section 104(b)(1) or 104(b)(4), as the case may be, if--
(1) prior to the construction of the project the Secretary
approves the plans and specifications therefor in the same manner as
other projects, and
(2) the project conforms to the applicable standards under
section 109 of this title.
(c) Inclusion in Transportation Improvement Program.--The Secretary
may approve an application for a project under this section only if the
project is included in the transportation improvement program of the
State developed under section 135(f).
(Pub. L. 85-767, Aug. 27, 1958, 72 Stat. 896; Pub. L. 90-495,
Sec. 25(a), (b), Aug. 23, 1968, 82 Stat. 828, 829; Pub. L. 93-643,
Sec. 111, Jan. 4, 1975, 88 Stat. 2285; Pub. L. 96-106, Sec. 4, Nov. 9,
1979, 93 Stat. 797; Pub. L. 97-424, title I, Sec. 113, Jan. 6, 1983, 96
Stat. 2106; Pub. L. 100-17, title I, Sec. 113(a)-(d)(1), Apr. 2, 1987,
101 Stat. 149, 150; Pub. L. 102-302, Sec. 103, June 22, 1992, 106 Stat.
252; Pub. L. 104-59, title III, Sec. 308, Nov. 28, 1995, 109 Stat. 582;
Pub. L. 105-178, title I, Secs. 1103(l)(3)(A), 1106(c)(1)(A), 1226(a),
title V, Sec. 5119(d), June 9, 1998, 112 Stat. 126, 136, 452; Pub. L.
105-206, title IX, Sec. 9003(a), July 22, 1998, 112 Stat. 837.)
Amendments
1998--Subsec. (a). Pub. L. 105-178, Sec. 1106(c)(1)(A)(i), struck
out ``Substitute,'' before ``Congestion'' in heading.
Subsec. (a)(1)(A)(i). Pub. L. 105-178, Secs. 1106(c)(1)(A)(ii),
5119(d), struck out ``103(e)(4)(H),'' after ``under section'' and
substituted ``or 505'' for ``or 307''.
Subsec. (b). Pub. L. 105-178, Sec. 1226(a)(1), as added by Pub. L.
105-206, Sec. 9003(a), struck out designation and heading of par. (1),
redesignated subpars. (A) and (B) as pars. (1) and (2), respectively,
realigned margins, and struck out former pars. (2) and (3), which
related to bond interest for projects under construction on Jan. 1,
1983, and directed that Federal share of cost of construction would
include amount of bond interest but not in excess of estimated costs
over actual costs.
Subsec. (b)(1). Pub. L. 105-178, Sec. 1103(l)(3)(A), substituted
``104(b)(4)'' for ``104(b)(5)''.
Subsecs. (c), (d). Pub. L. 105-178, Sec. 1226(a)(2), (3), as added
by Pub. L. 105-206, Sec. 9003(a), redesignated subsec. (d) as (c) and
struck out heading and text of former subsec. (c). Text read as follows:
``In determining the apportionment for any fiscal year under the
provisions of section 103(e)(4), 104, 134, 144,, or 307 of this title,
any such project constructed by a State without the aid of Federal funds
shall not be considered completed until an application under the
provisions of this section with respect to such project has been
approved by the Secretary.''
1995--Subsec. (d). Pub. L. 104-59 amended subsec. (d) generally.
Prior to amendment, subsec. (d) read as follows:
``(d) Limitation on Advanced Funding.--The Secretary may not approve
an application under this section unless an authorization for section
103(e)(4), 104, 144, or 307 of this title, as the case may be, is in
effect for the fiscal year for which the application is sought beyond
the currently authorized funds for each State. No applications may be
approved which will exceed the State's expected apportionment of such
authorizations.''
1992--Subsec. (a). Pub. L. 102-302, Sec. 103(1), in heading
substituted ``Substitute, Congestion Mitigation and Air Quality
Improvement, Surface Transportation, Bridge, Planning, and Research
Projects'' for ``Substitute, Urban, Secondary, Bridge, Planning,
Research, and Safety Construction Projects''.
Subsec. (a)(1)(A)(i). Pub. L. 102-302, Sec. 103(2)(A), added cl. (i)
and struck out former cl. (i) which read as follows: ``has obligated all
funds apportioned or allocated to it under section 103(e)(4)(H), section
104(b)(2), section 104(b)(6), section 104(f), section 130, section 144,
section 152, or section 307 of this title, or''.
Subsec. (a)(2)(A). Pub. L. 102-302, Sec. 103(2)(B), added subpar.
(A) and struck out former subpar. (A) which read as follows: ``prior to
commencement of the project the Secretary approves the plans and
specifications therefor in the same manner as other projects, and''.
Subsec. (a)(3). Pub. L. 102-302, Sec. 103(2)(C), struck out par. (3)
which read as follows: ``Limitation with respect to currently authorized
funds.--The Secretary may not approve an application under this section
unless an authorization for section 103(e)(4), 104, 130, 144, 152, or
307 of this title, as the case may be, is in effect for the fiscal year
for which the application is sought beyond the currently authorized
funds for such State. No application may be approved which will exceed
the State's expected apportionment of such authorizations. This
paragraph shall have no effect during the period beginning January 1,
1987, and ending September 30, 1990.''
Subsec. (b). Pub. L. 102-302, Sec. 103(3), (4), in heading
substituted ``National Highway System'' for ``Primary'' and in par. (1)
substituted ``National Highway System'' for ``Federal-aid primary
system''.
Subsec. (c). Pub. L. 102-302, Sec. 103(5), struck out ``152'' after
``144,''.
Subsec. (d). Pub. L. 102-302, Sec. 103(6), added subsec. (d) and
struck out former subsec. (d) which read as follows: ``Limitation on
Advanced Funding for Fiscal Years 1987-1990.--The Secretary may not
approve an application of a State under this section with respect to a
project with funds apportioned, or currently authorized to be
apportioned, under section 103(e)(4)(H), 104, 130, 144, 152, or 307 if
the amount of approved applications with respect to such projects
exceeds the total of unobligated funds apportioned or allocated to the
State under such section, plus such State's expected apportionment under
such section from existing authorizations plus an amount equal to such
State's expected apportionment under such section (other than section
104(b)(5)(A)) for one additional fiscal year. This subsection shall only
be effective during the period beginning January 1, 1987, and ending
September 30, 1990.''
1987--Pub. L. 100-17, Sec. 113(d)(1)(A), substituted ``Advance
construction'' for ``Construction by States in advance of
apportionment'' in section catchline.
Subsec. (a). Pub. L. 100-17, Sec. 113(a), amended subsec. (a)
generally. Prior to amendment, subsec. (a) read as follows:
``(1) When a State has obligated all funds apportioned or allocated
to it under section 103(e)(4), 104, or 144 of this title, other than
Interstate funds, and proceeds to construct any highway substitute,
Federal-aid system, or bridge project, respectively, other than an
Interstate project funded under section 104(b)(5) of this title, without
the aid of Federal funds in accordance with all procedures and all
requirements applicable to such a project, except insofar as such
procedures and requirements limit a State to the construction of
projects with the aid of Federal funds previously apportioned to it, the
Secretary, upon application by such State and his approval of such
application, is authorized to pay to such State the Federal share of the
costs of construction of such project when additional funds are
apportioned to such State under section 103(e)(4), 104, or 144,
respectively, of this title if--
``(A) prior to the construction of the project the Secretary
approves the plans and specifications therefor in the same manner as
other projects, and
``(B) the project conforms to the applicable standards adopted
under section 109 of this title.
``(2) The Secretary may not approve an application under this
section unless an authorization for section 103(e)(4), 104, or 144 of
this title, as the case may be, is in effect for the fiscal year for
which the application is sought beyond the currently authorized funds
for such State. No application may be approved which will exceed the
State's expected apportionment of such authorizations.''
Subsec. (b). Pub. L. 100-17, Sec. 113(b), inserted heading.
Subsec. (b)(1). Pub. L. 100-17, Sec. 113(b), amended par. (1)
generally. Prior to amendment, par. (1) read as follows: ``When a State
proceeds to construct any project on the Interstate System without the
aid of Federal funds, as that System may be designated at that time, in
accordance with all procedures and all requirements applicable to
projects on such System, except insofar as such procedures and
requirements limit a State to the construction of projects with the aid
of Federal funds previously apportioned to it, the Secretary, upon
application by such State and his approval of such application, is
authorized to pay to such State the Federal share of the cost of
construction of such project when additional funds are apportioned to
such State under section 104 of this title if--
``(A) prior to the construction of the project the Secretary
approves the plans and specifications therefor in the same manner as
other projects on the Interstate System, and
``(B) the project conforms to the applicable standards under
section 109 of this title.''
Subsec. (b)(2), (3). Pub. L. 100-17, Sec. 113(d)(1)(B)-(D), inserted
headings and aligned pars. (2) and (3) with par. (1), as amended.
Subsec. (c). Pub. L. 100-17, Sec. 113(d)(1)(E), (F), inserted
heading and substituted ``134, 144, 152, or 307'' for ``or 144''.
Subsec. (d). Pub. L. 100-17, Sec. 113(c), added subsec. (d).
1983--Subsec. (a). Pub. L. 97-424, Sec. 113(c), designated existing
provisions as pars. (1) and (2) and designated former pars. (1) and (2)
as subpars. (A) and (B), respectively, of par. (1); in par. (1) as so
redesignated, substituted ``When a State has obligated all funds
appropriated or allocated to it under section 103(e)(4), 104, or 144 of
this title, other than ``interstate funds, and proceeds to construct any
highway substitute, Federal-aid system, or bridge project, respectively,
other than an Interstate project funded under section 104(b)(5) of this
title, without the aid of Federal funds in accordance with all
procedures and all requirements applicable to such a project, except
insofar as such procedures and requirements limit a State to the
construction of projects with the aid of Federal funds previously
apportioned to it, the Secretary, upon application by such State and his
approval of such application, is authorized to pay to such State the
Federal share of the costs of construction of such project when
additional funds are apportioned to such State under section 103(e)(4),
104, or 144, respectively, of this title if--'', for ``When a State has
obligated all funds for any of the Federal-aid systems, other than the
Interstate System, apportioned to it under section 104 of this title,
and proceeds to construct any project without the aid of Federal funds,
including one or more parts of any project, on any of the Federal-aid
systems in such State, other than the Interstate System, as any of those
systems may be designated at that time, in accordance with all
procedures and all requirements applicable to projects on any such
system, except insofar as such procedures and requirements limit a State
to the construction of projects with the aid of Federal funds previously
apportioned to it, the Secretary, upon application by such State and his
approval of such application, is authorized to pay to such State the
Federal share of the costs of construction of such project when
additional funds are apportioned to such State under section 104 of this
title if--''; in subpar. (A) thereof struck out ``on the Federal-aid
system involved'' after ``other projects''; and in par. (2) as so
designated inserted ``for section 103(e)(4), 104, or 144 of this title,
as the case may be,'' after ``unless authorization'', and made a new
sentence of existing provisions, beginning with ``No application''.
Subsec. (b)(2). Pub. L. 97-424, Sec. 113(a), substituted ``1983''
for ``1978'' wherever appearing.
Subsec. (b)(3). Pub. L. 97-424, Sec. 113(b), added par. (3).
Subsec. (c). Pub. L. 97-424, Sec. 113(d), substituted ``section
103(e)(4), 104, or 144'' for ``section 104'' after ``provisions of''.
1979--Subsec. (b). Pub. L. 96-106 designated existing provisions as
par. (1) and cls. (1) and (2) thereof as subpars. (A) and (B) and added
par. (2).
1975--Subsec. (a). Pub. L. 93-643, Sec. 111(a), substituted ``other
than the Interstate System'' for ``including the Interstate System'' in
two places.
Subsecs. (b), (c). Pub. L. 93-643, Sec. 111(b), added subsec. (b)
and redesignated former subsec. (b) as (c).
1968--Subsec. (a). Pub. L. 90-495, Sec. 25(a), extended advance
construction authority to all the Federal-aid highway systems rather
than just the Interstate System but provided that anticipation of future
apportionments by States should only be permitted for those years for
which authorizations have been established by law.
Subsec. (b). Pub. L. 90-495, Sec. 25(b), struck out reference to
subsec. (b)(5) of section 104 of this title.
Effective Date of 1998 Amendment
Title IX of Pub. L. 105-206 effective simultaneously with enactment
of Pub. L. 105-178 and to be treated as included in Pub. L. 105-178 at
time of enactment, and provisions of Pub. L. 105-178, as in effect on
day before July 22, 1998, that are amended by title IX of Pub. L. 105-
206 to be treated as not enacted, see section 9016 of Pub. L. 105-206,
set out as a note under section 101 of this title.
Effective Date of 1968 Amendment
Amendment by Pub. L. 90-495 effective Aug. 23, 1968, see section 37
of Pub. L. 90-495, set out as a note under section 101 of this title.
