I 112th CONGRESS 1st Session H. R. 2766 IN THE HOUSE OF REPRESENTATIVES August 1, 2011 Mr. Gary G. Miller of California (for himself and Mr. Hunter) introduced the following bill; which was referred to the Committee on Transportation and Infrastructure A BILL To amend titles 23 and 49, United States Code, to accelerate the delivery process for highway and public transportation construction projects, and for other purposes.

1.

Short title; table of contents

(a)

Short title

This Act may be cited as the Breaking Down Barriers Act of 2011. (b)

Table of contents

Sec. 1. Short title; table of contents. Sec. 2. Advance construction of highway projects. Sec. 3. Surface transportation project delivery pilot program. Sec. 4. Methods to consolidate and streamline environmental impact statement processing. Sec. 5. Categorical exclusions. Sec. 6. Administration of highway and public transportation projects with high non-Federal shares. Sec. 7. Requirements for prompt payments and approvals by the Secretary of Transportation. Sec. 8. Assistance to State and Federal agencies.

2.

Advance construction of highway projects

(a)

Finding

Congress finds that it is in the public interest for the Secretary of Transportation to allow States to carry out advance construction activities under section 115 of title 23, United States Code, as a method for accelerating the delivery of highway projects and creating jobs. (b)

Preapproval spending; letters of no prejudice

Section 115 of title 23, United States Code, is amended by adding at the end the following: (d)

Preapproval spending

In approving an application for a project under this section, the Secretary may include as part of the project activities carried out by the State before the date of approval of the application if the Secretary determines that the activities were carried out in accordance with the requirements applicable to the project. (e)

Letters of no prejudice

(1)

Issuance

The Secretary may issue letters of no prejudice for projects under this section in the same manner as the Secretary issues such letters for public transportation projects under sections 5307 and 5309 of title 49. (2)

Timing

To accelerate project delivery, the Secretary may issue a letter of no prejudice for a project at the time the project is included in the transportation improvement program of the State developed under section 135(f) or as soon as practicable thereafter. .

3.

Surface transportation project delivery pilot program

Section 327 of title 23, United States Code, is amended— (1)in the section heading by striking pilot; (2)in subsection (a)(1) by striking pilot; (3)in subsection (a)(2)— (A)in subparagraph (B) by striking clause (ii) and inserting the following: (ii)the Secretary may not assign any responsibility imposed on the Secretary by section 134 or 135. ; and (B)by adding at the end the following: (F)

Preservation of flexibility

The Secretary shall not require a State, as a condition of participation in this program, to forego project delivery methods that are otherwise permissible for highway projects. (G)

Highway project

A highway project under subparagraph (A) includes any project eligible under this title. With respect to such a project, a State may assume the responsibilities administered by the Federal Highway Administration, but the State may not assume the responsibilities of any other modal administration within the Department. ; (4)in subsection (b)— (A)by striking paragraph (1) and inserting the following: (1)

Participating States

(A)

In general

All States are eligible to participate in the program. (B)

Special rule

Any State participating in the program under this section on September 30, 2009, shall be permitted by the Secretary to continue to participate in the program and such State shall not have to submit an application under paragraph (2) in order to participate in the program. ; and (B)in paragraph (2) by striking this section, the Secretary shall promulgate and inserting the Breaking Down Barriers Act of 2011, the Secretary shall modify, as appropriate,; and (5)by striking subsection (i) and inserting the following: (i)

Termination

The Secretary may terminate the participation of any State in the program if— (1)the Secretary determines that the State is not adequately carrying out the responsibilities assigned to the State; (2)the Secretary provides to the State— (A)notification of the determination of noncompliance; and (B)a period of at least 30 days during which to take such corrective action as the Secretary determines is necessary to comply with the applicable agreement; and (3)the State, after the notification and period provided under paragraph (2), fails to take satisfactory corrective action, as determined by Secretary. .

4.

Methods to consolidate and streamline environmental impact statement processing

(a)

Study

The Comptroller General of the United States shall conduct a study on methods to consolidate and streamline the environmental impact statement process as the process applies to the construction of Federal-aid highway and highway safety construction projects and public transportation projects. (b)

Contents

The study shall focus on current procedures for environmental impact statements and the feasibility modernizing those procedures to include new media and other communication techniques. (c)

Report to Congress

Not later than 270 days after the date of enactment of this Act, the Comptroller General shall submit to Congress a report on the results of the study.

5.

Categorical exclusions

(a)

Recommendations for expanding list of categorical exclusions

The Secretary of Transportation, in consultation with the Administrator of the Federal Highway Administration and the Administrator of the Federal Transit Administration, shall develop recommendations for expanding the list of activities that are included within classes of action, identified in regulation by the Secretary, that are categorically excluded from requirements for environmental assessments or environmental impact statements pursuant to regulations promulgated by the Council on Environmental Quality under part 1500 of title 40, Code of Federal Regulations. (b)

Participation of recipients

In developing the recommendations, the Secretary shall solicit comments from States and other recipients of assistance under title 23, United States Code, and chapter 53 of title 49, United States Code. (c)

Report to Congress

Not later than 180 days after the date of enactment of this Act, the Secretary shall submit to Congress a report on the recommendations developed under subsection (a).

6.

Administration of highway and public transportation projects with high non-Federal shares

(a)

Highway projects

Section 106 of title 23, United States Code, is amended by adding at the end the following: (j)

Administration of projects with high non-Federal shares

(1)

Delegation of Federal responsibilities

In carrying out subsection (b), the Secretary may enter into an agreement to permit a State to assume all of the responsibilities of the Secretary for a project funded using amounts apportioned to the State under this title if the State certifies that— (A)the project will be carried in accordance with the requirements applicable to the project; and (B)at least two-thirds of the total cost of the project will be derived from State funds. (2)

Termination of agreements

The Secretary may terminate an agreement entered into for a project under paragraph (1) if the Secretary determines that a requirement applicable to the project is not being met. . (b)

Public transportation projects

Section 5334 of title 49, United States Code, is amended by adding at the end the following: (m)

Administration of projects with high non-Federal shares

(1)

Delegation of Federal responsibilities

The Secretary may enter into an agreement to permit a recipient of funds under section 5307 or 5311 to assume all of the responsibilities of the Secretary for a project funded using such funds if the recipient certifies that— (A)the project will be carried in accordance with the requirements applicable to the project; and (B)at least two-thirds of the total cost of the project will be derived from non-Federal sources. (2)

Termination of agreements

The Secretary may terminate an agreement entered into for a project under paragraph (1) if the Secretary determines that a requirement applicable to the project is not being met. .

7.

Requirements for prompt payments and approvals by the Secretary of Transportation

(a)

Extension of highway prompt payment program to other DOT programs

The Secretary of Transportation shall extend the prompt payment program that applies to Federal-aid highway and highway safety construction projects to cover other transportation construction projects for which funding is provided by the Secretary. (b)

Deadlines for Federal approval actions

(1)

Regulations

The Secretary of Transportation shall issue regulations to establish deadlines for Federal actions relating to the approval of projects under title 23, United States Code, and chapter 53 of title 49, United States Code. (2)

Failure to meet approval deadlines

Regulations issued under paragraph (1) shall provide that if an application is submitted to the Secretary for approval of a project under title 23, United States Code, or chapter 53 of title 49, United States Code, and the Secretary does not act on the application on or before the deadline established for that action under such regulations, the application shall be treated as having been approved. (3)

Deadline for issuance of final regulations

Not later than 1 year after the date of enactment of this Act, the Secretary shall issue final regulations under paragraph (1).

8.

Assistance to State and Federal agencies

Section 139(j)(2) of title 23, United States Code, is amended by adding at the end the following: Such activities may include activities that extend beyond environmental work to other aspects and modes of program and project delivery..