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TEA-21 - Transportation Equity Act for the
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Subtitle C--Program Streamlining and Flexibility SEC. 1301. REAL PROPERTY ACQUISITION AND CORRIDOR PRESERVATION. (a) Advance Acquisition of Real Property.--Section 108 of title 23, United States Code, is amended by striking the section heading and subsection (a) and inserting the following: ``Sec. 108. Advance acquisition of real property ``(a) In General.-- ``(1) Availability of funds.--For the purpose of facilitating the timely and economical acquisition of real property for a transportation improvement eligible for funding under this title, the Secretary, upon the request of a State, may make available, for the acquisition of real property, such funds apportioned to the State as may be expended on the transportation improvement, under such rules and regulations as the Secretary may issue. ``(2) Construction.--The agreement between the Secretary and the State for the reimbursement of the cost of the real property shall provide for the actual construction of the transportation improvement within a period not to exceed 20 years following the fiscal year for which the request is made, unless the Secretary determines that a longer period is reasonable.''. (b) Credit for Acquired Lands.--Section 323(b) of such title is amended-- (1) in the subsection heading, by striking ``Donated'' and inserting ``Acquired''; (2) by striking paragraphs (1) and (2) and inserting the following: ``(1) In general.--Notwithstanding any other provision of this title, the State share of the cost of a project with respect to which Federal assistance is provided from the Highway Trust Fund (other than the Mass Transit Account) may be credited in an amount equal to the fair market value of any land that-- ``(A) is lawfully obtained by the State or a unit of local government in the State; ``(B) is incorporated into the project; ``(C) is not land described in section 138; and ``(D) the Secretary determines will not influence the environmental assessment of the project, including-- ``(i) the decision as to the need to construct the project; ``(ii) the consideration of alternatives; and ``(iii) the selection of a specific location. ``(2) Establishment of fair market value.--The fair market value of land incorporated into a project and credited under paragraph (1) shall be established in the manner determined by the Secretary, except that-- ``(A) the fair market value shall not include any increase or decrease in the value of donated property caused by the project; and ``(B) the fair market value of donated land shall be established as of the earlier of-- ``(i) the date on which the donation becomes effective; or ``(ii) the date on which equitable title to the land vests in the State.''; (3) in paragraph (3) by striking ``agency of a Federal, State, or local government'' and inserting ``agency of the Federal Government''; and (4) in paragraph (4) by striking ``to which the donation is applied''. (c) Crediting of Contributions by Units of Local Government Toward the State Share.--Section 323 of such title <<NOTE: 23 USC 323.>> is amended by adding at the end the following: ``(e) Crediting of Contributions by Units of Local Government Toward the State Share.--A contribution by a unit of local government of real property, funds, or material in connection with a project eligible for assistance under this title shall be credited against the State share of the project at the fair market value of the real property, funds, or material.''. (d) Conforming Amendments.-- (1) Section 323 of such title is amended by striking the section heading and inserting the following: ``Sec. 323. Donations and credits''. (2) The analysis for chapter 1 of such title is amended by striking the item relating to section 108 and inserting the following: ``108. Advance acquisition of real property.''. (3) The analysis for chapter 3 of such title is amended by striking the item relating to section 323 and inserting the following: ``323. Donations and credits.''. SEC. 1302. PAYMENTS TO STATES FOR CONSTRUCTION. Section 121 of title 23, United States Code, is amended-- (1) by striking subsections (a) and (b) and inserting the following: ``(a) In General.--The Secretary, from time to time as the work progresses, may make payments to a State for costs of construction incurred by the State on a project. Such payments may also be made for the value of the materials-- ``(1) that have been stockpiled in the vicinity of the construction in conformity to plans and specifications for the projects; and ``(2) that are not in the vicinity of the construction if the Secretary determines that because of required fabrication at an off-site location the material cannot be stockpiled in such vicinity. ``(b) Project Agreement.--No payment shall be made under this chapter except for a project covered by a project agreement. After completion of the project in accordance with the project agreement, a State shall be entitled to payment out of the appropriate sums apportioned or allocated to the State of the unpaid balance of the Federal share payable for such project.''; (2) by striking subsections (c) and (d); and (3) by redesignating subsection (e) as subsection (c). SEC. 1303. PROCEEDS FROM THE SALE OR LEASE OF REAL PROPERTY. (a) In General.--Section 156 of title 23, United States Code, is amended to read as follows: ``Sec. 156. Proceeds from the sale or lease of real property ``(a) Minimum Charge.--Subject to section 142(f), a State shall charge, at a minimum, fair market value for the sale, use, lease, or lease renewal (other than for utility use and occupancy or for a transportation project eligible for assistance under this title) of real property acquired with Federal assistance made available from the Highway Trust Fund (other than the Mass Transit Account). ``(b) Exceptions.--The Secretary may grant an exception to the requirement of subsection (a) for a social, environmental, or economic purpose. ``(c) Use of Federal Share of Income.--The Federal share of net income from the revenues obtained by a State under subsection (a) shall be used by the State for projects eligible under this title.''. (b) Conforming Amendment.--The analysis for chapter 1 of such title is amended by striking the item relating to section 156 and inserting the following: ``156. Proceeds from the sale or lease of real property.''. SEC. 1304. ENGINEERING COST REIMBURSEMENT. Section 102(b) of title 23, United States Code, is amended in the first sentence by inserting after ``10 years'' the following: ``(or such longer period as the State requests and the Secretary determines to be reasonable)''. SEC. 1305. PROJECT APPROVAL AND OVERSIGHT. (a) In General.--Section 106 of title 23, United States Code, is amended-- (1) by striking the section heading and inserting the following: ``Sec. 106. Project approval and oversight''; (2) by redesignating subsections (e) and (f) as subsections (f) and (g), respectively; and (3) by striking subsections (a) through (d) and inserting the following: ``(a) In General.-- ``(1) Submission of plans, specifications, and estimates.-- Except as otherwise provided in this section, each State transportation department shall submit to the Secretary for approval such plans, specifications, and estimates for each proposed project as the Secretary may require. ``(2) Project agreement.--The Secretary shall act on the plans, specifications, and estimates as soon as practicable after the date of their submission and shall enter into a formal project agreement with the State transportation department formalizing the conditions of the project approval. ``(3) Contractual obligation.--The execution of the project agreement shall be deemed a contractual obligation of the Federal Government for the payment of the Federal share of the cost of the project. ``(4) Guidance.--In taking action under this subsection, the Secretary shall be guided by section 109. ``(b) Project Agreement.-- ``(1) Provision of state funds.--The project agreement shall make provision for State funds required to pay the State's non- Federal share of the cost of construction of the project and to pay for maintenance of the project after completion of construction. ``(2) Representations of state.--If a part of the project is to be constructed at the expense of, or in cooperation with, political subdivisions of the State, the Secretary may rely on representations made by the State transportation department with respect to the arrangements or agreements made by the State transportation department and appropriate local officials for ensuring that the non-Federal contribution will be provided under paragraph (1). ``(c) Assumption by States of Responsibilities of the Secretary.-- ``(1) Non-interstate nhs projects.--For projects under this title that are on the National Highway System but not on the Interstate System, the State may assume the responsibilities of the Secretary under this title for design, plans, specifications, estimates, contract awards, and inspections of projects unless the State or the Secretary determines that such assumption is not appropriate. ``(2) Non-nhs projects.--For projects under this title that are not on the National Highway System, the State shall assume the responsibilities of the Secretary under this title for design, plans, specifications, estimates, contract awards, and inspection of projects, unless the State determines that such assumption is not appropriate. ``(3) Agreement.--The Secretary and the State shall enter into an agreement relating to the extent to which the State assumes the responsibilities of the Secretary under this subsection. ``(4) Limitation on authority of secretary.--The Secretary may not assume any greater responsibility than the Secretary is permitted under this title on September 30, 1997, except upon agreement by the Secretary and the State. ``(d) Responsibilities of the Secretary.--Nothing in this section, section 133, or section 149 shall affect or discharge any responsibility or obligation of the Secretary under-- ``(1) section 113 or 114; or ``(2) any Federal law other than this title (including section 5333 of title 49). ``(e) Value Engineering Analysis.--For such projects as the Secretary determines advisable, plans, specifications, and estimates for proposed projects on any Federal-aid highway shall be accompanied by a value engineering analysis or other cost reduction analysis.''. (b) Financial Plan.--Section 106 of such title (as amended by subsection (a)(2)), is amended <<NOTE: 23 USC 106.>> by adding at the end the following: ``(h) Financial Plan.--A recipient of Federal financial assistance for a project under this title with an estimated total cost of $1,000,000,000 or more shall submit to the Secretary an annual financial plan for the project. The plan shall be based on detailed annual estimates of the cost to complete the remaining elements of the project and on reasonable assumptions, as determined by the Secretary, of future increases in the cost to complete the project.''. (c) Life Cycle Cost Analysis.--Section 106 of such title (as amended by subsection (a)(2)), is amended by striking subsection (f) and inserting the following: ``(f) Life-Cycle Cost Analysis.-- ``(1) Use of life-cycle cost analysis.--The Secretary shall develop recommendations for the States to conduct life-cycle cost analyses. The recommendations shall be based on the principles contained in section 2 of Executive Order No. 12893 and shall be developed in consultation with the American Association of State Highway and Transportation Officials. The Secretary shall not require a State to conduct a life-cycle cost analysis for any project as a result of the recommendations required under this subsection. ``(2) Life-cycle cost analysis defined.--In this subsection, the term `life-cycle cost analysis' means a process for evaluating the total economic worth of a usable project segment by analyzing initial costs and discounted future costs, such as maintenance, user costs, reconstruction, rehabilitation, restoring, and resurfacing costs, over the life of the project segment.''. (d) Conforming Amendment.--The analysis for chapter 1 of such title is amended by striking the item relating to section 106 and inserting the following: ``106. Project approval and oversight.''. SEC. 1306. STANDARDS. (a) Elimination of Guidelines and Annual Certification Requirements.--Section 109 of title 23, United States Code, is amended-- (1) by striking subsection (m); and (2) by redesignating subsections (n) through (q) as subsections (m) through (p), respectively. (b) Safety standards.--Section 109 of such title (as amended by subsection (a)), is amended by adding at the end the following: ``(q) Phase Construction.--Safety considerations for a project under this title may be met by phase construction consistent with the operative safety management system established in accordance with section 303 or in accordance with a statewide transportation improvement program approved by the Secretary.''. SEC. 1307. DESIGN-BUILD CONTRACTING. (a) Authority.--Section 112(b) of title 23, United States Code, is amended-- (1) in the first sentence of paragraph (1) by striking ``paragraph (2)'' and inserting ``paragraphs (2) and (3)''; (2) in paragraph (2)(A) by striking ``Each'' and inserting ``Subject to paragraph (3), each''; and (3) by adding at the end the following: ``(3) Design-build contracting.-- ``(A) In general.--A State transportation department or local transportation agency may award a design-build contract for a qualified project described in subparagraph (C) using any procurement process permitted by applicable State and local law. ``(B) Limitation on final design.--Final design under a design-build contract referred to in subparagraph (A) shall not commence before compliance with section 102 of the National Environmental Policy Act of 1969 (42 U.S.C. 4332). ``(C) Qualified projects.--A qualified project referred to in subparagraph (A) is a project under this chapter for which-- ``(i) the Secretary has approved the use of design-build contracting described in subparagraph (A) under criteria specified in regulations issued by the Secretary; and ``(ii) the total costs are estimated to exceed-- ``(I) in the case of a project that involves installation of an intelligent transportation system, $5,000,000; and ``(II) in the case of any other project, $50,000,000. ``(D) Design-build contract defined.--In this paragraph, the term `design-build contract' means an agreement that provides for design and construction of a project by a contractor, regardless of whether the agreement is in the form of a design-build contract, a franchise agreement, or any other form of contract approved by the Secretary.''. (b) Inapplicability of Standardized Contract Clause Requirement.-- Section 112(e)(2) of such title is amended-- <<NOTE: 23 USC 112.>> (1) by striking ``Paragraph'' and inserting the following: ``(A) State law.--Paragraph''; (2) by adding at the end the following: ``(B) Design-build contracts.--Paragraph (1) shall not apply to any design-build contract approved under subsection (b)(3).''; and (3) by aligning the remainder of the text of subparagraph (A) (as designated by paragraph (1) of this subsection) with subparagraph (B) of such section (as added by paragraph (2) of this subsection). (c) Regulations.-- <<NOTE: 23 USC 112 note.>> (1) In general.--Not later than the effective date specified in subsection (e), after consultation with the American Association of State Highway and Transportation Officials and representatives from affected industries, the Secretary shall issue regulations to carry out the amendments made by this section. (2) Contents.--The regulations shall-- (A) identify the criteria to be used by the Secretary in approving the use by a State transportation department or local transportation agency of design-build contracting; and (B) establish the procedures to be followed by a State transportation department or local transportation agency for obtaining the Secretary's approval of the use of design-build contracting by the department or agency. (d) <<NOTE: 23 USC 112 note.>> Effect on Experimental Program.-- Nothing in this section or the amendments made by this section affects the authority to carry out, or any project carried out under, any experimental program concerning design-build contracting that is being carried out by the Secretary as of the date of enactment of this Act. (e) Effective Date for Amendments.-- <<NOTE: 23 USC 112 note.>> (1) In general.--The amendments made by this section take effect 3 years after the date of enactment of this Act. (2) Transition provision.-- (A) In general.--During the period before issuance of the regulations under subsection (c), the Secretary may approve, in accordance with an experimental program described in subsection (d), design-build contracts to be awarded using any process permitted by applicable State and local law; except that final design under any such contract shall not commence before compliance with section 102 of the National Environmental Policy Act of 1969 (42 U.S.C. 4332). (B) Previously awarded contracts.--The Secretary may approve design-build contracts awarded before the date of enactment of this Act. (C) Design-build contract defined.--In this paragraph, the term ``design-build contract'' means an agreement that provides for design and construction of a project by a contractor, regardless of whether the agreement is in the form of a design-build contract, a franchise agreement, or any other form of contract approved by the Secretary. (f) Report to Congress.-- <<NOTE: 23 USC 112 note.>> (1) In general.--Not later than 5 years after the date of enactment of this Act, the Secretary shall submit to Congress a report on the effectiveness of design-build contracting procedures. (2) Contents.--The report shall contain-- (A) an assessment of the effect of design-build contracting on project quality, project cost, and timeliness of project delivery; (B) recommendations on the appropriate level of design for design-build procurements; (C) an assessment of the impact of design-build contracting on small businesses; (D) assessment of the subjectivity used in design- build contracting; and (E) such recommendations concerning design-build contracting procedures as the Secretary determines to be appropriate. SEC. 1308. MAJOR INVESTMENT STUDY INTEGRATION. The Secretary shall eliminate the major investment study set forth in section 450.318 of title 23, Code of Federal Regulations, as a separate requirement, and promulgate regulations to integrate such requirement, as appropriate, as part of the analyses required to be undertaken pursuant to the planning provisions of title 23, United States Code, and chapter 53 of title 49, United States Code, and the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) for Federal-aid highway and transit projects. The scope of the applicability of such regulations shall be no broader than the scope of such section. SEC. 1309. ENVIRONMENTAL STREAMLINING. <<NOTE: 23 USC 109 note.>> (a) Coordinated Environmental Review Process.-- (1) Development and implementation.--The Secretary shall develop and implement a coordinated environmental review process for highway construction projects that require-- (A) the preparation of an environmental impact statement or environmental assessment under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), except that the Secretary may decide not to apply this section to the preparation of an environmental assessment under such Act; or (B) the conduct of any other environmental review, analysis, opinion, or issuance of an environmental permit, license, or approval by operation of Federal law. (2) Memorandum of understanding.-- (A) In general.--The coordinated environmental review process for each project shall ensure that, whenever practicable (as specified in this section), all environmental reviews, analyses, opinions, and any permits, licenses, or approvals that must be issued or made by any Federal agency for the project concerned shall be conducted concurrently and completed within a cooperatively determined time period. Such process for a project or class of project may be incorporated into a memorandum of understanding between the Department of Transportation and Federal agencies (and, where appropriate, State agencies). (B) Establishment of time periods.--In establishing the time period referred to in subparagraph (A), and any time periods for review within such period, the Department and all such agencies shall take into account their respective resources and statutory commitments. (b) Elements of Coordinated Environmental Review Process.--For each project, the coordinated environmental review process established under this section shall provide, at a minimum, for the following elements: (1) Federal agency identification.--The Secretary shall, at the earliest possible time, identify all potential Federal agencies that-- (A) have jurisdiction by law over environmental- related issues that may be affected by the project and the analysis of which would be part of any environmental document required by the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.); or (B) may be required by Federal law to independently-- (i) conduct an environmental-related review or analysis; or (ii) determine whether to issue a permit, license, or approval or render an opinion on the environmental impact of the project. (2) Time limitations and concurrent review.--The Secretary and the head of each Federal agency identified under paragraph (1)-- (A)(i) shall jointly develop and establish time periods for review for-- (I) all Federal agency comments with respect to any environmental review documents required by the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) for the project; and (II) all other independent Federal agency environmental analyses, reviews, opinions, and decisions on any permits, licenses, and approvals that must be issued or made for the project; whereby each such Federal agency's review shall be undertaken and completed within such established time periods for review; or (ii) may enter into an agreement to establish such time periods for review with respect to a class of project; and (B) shall ensure, in establishing such time periods for review, that the conduct of any such analysis, review, opinion, and decision is undertaken concurrently with all other environmental reviews for the project, including the reviews required by the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.); except that such review may not be concurrent if the affected Federal agency can demonstrate that such concurrent review would result in a significant adverse impact to the environment or substantively alter the operation of Federal law or would not be possible without information developed as part of the environmental review process. (3) Factors to be considered.--Time periods for review established under this section shall be consistent with the time periods established by the Council on Environmental Quality under sections 1501.8 and 1506.10 of title 40, Code of Federal Regulations. (4) Extensions.--The Secretary shall extend any time periods for review under this section if, upon good cause shown, the Secretary and any Federal agency concerned determine that additional time for analysis and review is needed as a result of new information that has been discovered that could not reasonably have been anticipated when the Federal agency's time periods for review were established. Any memorandum of understanding shall be modified to incorporate any mutually agreed-upon extensions. (c) Dispute Resolution.--When the Secretary determines that a Federal agency which is subject to a time period for its environmental review or analysis under this section has failed to complete such review, analysis, opinion, or decision on issuing any permit, license, or approval within the established time period or within any agreed-upon extension to such time period, the Secretary may, after notice and consultation with such agency, close the record on the matter before the Secretary. If the Secretary finds, after timely compliance with this section, that an environmental issue related to the project that an affected Federal agency has jurisdiction over by operation of Federal law has not been resolved, the Secretary and the head of the Federal agency shall resolve the matter not later than 30 days after the date of the finding by the Secretary. (d) Participation of State Agencies.--For any project eligible for assistance under chapter 1 of title 23, United States Code, a State, by operation of State law, may require that all State agencies that have jurisdiction by State or Federal law over environmental-related issues that may be affected by the project, or that are required to issue any environmental-related reviews, analyses, opinions, or determinations on issuing any permits, licenses, or approvals for the project, be subject to the coordinated environmental review process established under this section unless the Secretary determines that a State's participation would not be in the public interest. For a State to require State agencies to participate in the review process, all affected agencies of the State shall be subject to the review process. (e) Assistance to Affected Federal Agencies.-- (1) In general.--The Secretary may approve a request by a State to provide funds made available under chapter 1 of title 23, United States Code, to the State for the project subject to the coordinated environmental review process established under this section to affected Federal agencies to provide the resources necessary to meet any time limits established under this section. (2) Amounts.--Such requests under paragraph (1) shall be approved only-- (A) for the additional amounts that the Secretary determines are necessary for the affected Federal agencies to meet the time limits for environmental review; and (B) if such time limits are less than the customary time necessary for such review. (f) Judicial Review and Savings Clause.-- (1) Judicial review.--Nothing in this section shall affect the reviewability of any final Federal agency action in a district court of the United States or in the court of any State. (2) Savings clause.--Nothing in this section shall affect the applicability of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) or any other Federal environmental statute or affect the responsibility of any Federal officer to comply with or enforce any such statute. (g) Federal Agency Defined.--In this section, the term ``Federal agency'' means any Federal agency or any State agency carrying out affected responsibilities required by operation of Federal law. SEC. 1310. UNIFORM TRANSFERABILITY OF FEDERAL-AID HIGHWAY FUNDS. (a) In General.--Chapter 1 of title 23, United States Code, is amended by inserting after section 109 the following: ``Sec. 110. Uniform transferability of Federal-aid highway funds ``(a) General Rule.--Notwithstanding any other provision of law but subject to subsections (b) and (c), if at least 50 percent of a State's apportionment under section 104 or 144 for a fiscal year or at least 50 percent of the funds set-aside under section 133(d) from the State's apportionment section 104(b)(3) may not be transferred to any other apportionment of the State under section 104 or 144 for such fiscal year, then the State may transfer not to exceed 50 percent of such apportionment or set aside to any other apportionment of such State under section 104 or 144 for such fiscal year. ``(b) Application to Certain Set-Asides.--No funds may be transferred under this section that are subject to the last sentence of section 133(d)(1) or to section 104(f) or to section 133(d)(3). The maximum amount that a State may transfer under this section of the State's set-aside under section 133(d)(1) or 133(d)(2) for a fiscal year may not exceed 25 percent of (1) the amount of such set-aside, less (2) the amount of the State's set-aside under such section for fiscal year 1997. ``(c) Application to Certain CMAQ Funds.--The maximum amount that a State may transfer under this section of the State's apportionment under section 104(b)(2) for a fiscal year may not exceed 50 percent of (1) the amount of such apportionment, less (2) the amount that the State's apportionment under section 104(b)(2) for such fiscal year would have been had the program been funded at $1,350,000,000. Any such funds apportioned under section 104(b)(2) and transferred under this section may only be obligated in geographic areas eligible for the obligation of funds apportioned under section 104(b)(2).''. (b) Conforming Amendment.--The analysis for chapter 1 of such title is amended by inserting after the item relating to section 109 the following: ``110. Uniform transferability of Federal-aid highway funds.''.