23 U.S.C. § 119

(a) Establishment .— The Secretary shall establish and implement a national highway performance program under this section. (b) Purposes .— The purposes of the national highway performance program shall be— (1) to provide support for the condition and performance of the National Highway System; (2) to provide support for the construction of new facilities on the National Highway System; (3) to ensure that investments of Federal-aid funds in highway construction are directed to support progress toward the achievement of performance targets established in an asset management plan of a State for the National Highway System; and (4) to provide support for activities to increase the resiliency of the National Highway System to mitigate the cost of damages from sea level rise, extreme weather events, flooding, wildfires, or other natural disasters. (c) Eligible Facilities .— Except as provided in subsection (d), to be eligible for funding apportioned under section 104(b)(1) to carry out this section, a facility shall be located on the National Highway System, as defined in section 103. (d) Eligible Projects .— Funds apportioned to a State to carry out the national highway performance program may be obligated only for a project on an eligible facility that is— (1) (A) a project or part of a program of projects supporting progress toward the achievement of national performance goals for improving infrastructure condition, safety, congestion reduction, system reliability, or freight movement on the National Highway System; and (B) consistent with sections 134 and 135; and (2) for 1 or more of the following purposes: (A) Construction, reconstruction, resurfacing, restoration, rehabilitation, preservation, or operational improvement of segments of the National Highway System. (B) Construction, replacement (including replacement with fill material), rehabilitation, preservation, and protection (including scour countermeasures, seismic retrofits, impact protection measures, security countermeasures, and protection against extreme events) of bridges on the National Highway System. (C) Construction, replacement (including replacement with fill material), rehabilitation, preservation, and protection (including impact protection measures, security countermeasures, and protection against extreme events) of tunnels on the National Highway System. (D) Inspection and evaluation, as described in section 144, of bridges and tunnels on the National Highway System, and inspection and evaluation of other highway infrastructure assets on the National Highway System, including signs and sign structures, earth retaining walls, and drainage structures. (E) Training of bridge and tunnel inspectors, as described in section 144. (F) Construction, rehabilitation, or replacement of existing ferry boats and ferry boat facilities, including approaches, that connect road segments of the National Highway System. (G) Construction, reconstruction, resurfacing, restoration, rehabilitation, and preservation of, and operational improvements for, a Federal-aid highway not on the National Highway System, and construction of a transit project eligible for assistance under chapter 53 of title 49, if— (i) the highway project or transit project is in the same corridor as, and in proximity to, a fully access-controlled highway designated as a part of the National Highway System; (ii) the construction or improvements will reduce delays or produce travel time savings on the fully access-controlled highway described in clause (i) and improve regional traffic flow; and (iii) the construction or improvements are more cost-effective, as determined by benefit-cost analysis, than an improvement to the fully access-controlled highway described in clause (i). (H) Bicycle transportation and pedestrian walkways in accordance with section 217. (I) Highway safety improvements for segments of the National Highway System. (J) Capital and operating costs for traffic and traveler information monitoring, management, and control facilities and programs. (K) Development and implementation of a State asset management plan for the National Highway System in accordance with this section, including data collection, maintenance, and integration and the cost associated with obtaining, updating, and licensing software and equipment required for risk-based asset management and performance-based management. (L) Infrastructure-based intelligent transportation systems capital improvements, including the installation of vehicle-to-infrastructure communication equipment. (M) Environmental restoration and pollution abatement in accordance with section 328. (N) Control of noxious weeds and aquatic noxious weeds and establishment of native species in accordance with section 329. (O) Environmental mitigation efforts related to projects funded under this section, as described in subsection (g). (P) Construction of publicly owned intracity or intercity bus terminals servicing the National Highway System. (Q) Undergrounding public utility infrastructure carried out in conjunction with a project otherwise eligible under this section. (R) Resiliency improvements on the National Highway System, including protective features described in subsection (k)(2). (S) Implement activities to protect segments of the National Highway System from cybersecurity threats. (e) State Performance Management.— (1) In general .— A State shall develop a risk-based asset management plan for the National Highway System to improve or preserve the condition of the assets and the performance of the system. (2) Performance driven plan .— A State asset management plan shall include strategies leading to a program of projects that would make progress toward achievement of the State targets for asset condition and performance of the National Highway System in accordance with section 150(d) and supporting the progress toward the achievement of the national goals identified in section 150(b). (3) Scope .— In developing a risk-based asset management plan, the Secretary shall encourage States to include all infrastructure assets within the right-of-way corridor in such plan. (4) Plan contents .— A State asset management plan shall, at a minimum, be in a form that the Secretary determines to be appropriate and include— (A) a summary listing of the pavement and bridge assets on the National Highway System in the State, including a description of the condition of those assets; (B) asset management objectives and measures; (C) performance gap identification; (D) lifecycle cost and risk management analyses, both of which shall take into consideration extreme weather and resilience; (E) a financial plan; and (F) investment strategies. (5) Requirement for plan.— (A) In general .— Notwithstanding section 120, each fiscal year, if the Secretary determines that a State has not developed and implemented a State asset management plan consistent with this section, the Federal share payable on account of any project or activity for which funds are obligated by the State in that fiscal year under this section shall be 65 percent. (B) Determination .— The Secretary shall make the determination under subparagraph (A) for a fiscal year not later than the day before the beginning of such fiscal year. (6) Certification of plan development process.— (A) In general .— Not later than 90 days after the date on which a State submits a request for approval of the process used by the State to develop the State asset management plan for the National Highway System, the Secretary shall— (i) review the process; and (ii) (I) certify that the process meets the requirements established by the Secretary; or (II) deny certification and specify actions necessary for the State to take to correct deficiencies in the State process. (B) Recertification .— Not less frequently than once every 4 years, the Secretary shall review and recertify that the process used by a State to develop and maintain the State asset management plan for the National Highway System meets the requirements for the process, as established by the Secretary. (C) Opportunity to cure .— If the Secretary denies certification under subparagraph (A), the Secretary shall provide the State with— (i) not less than 90 days to cure the deficiencies of the plan, during which time period all penalties and other legal impacts of a denial of certification shall be stayed; and (ii) a written statement of the specific actions the Secretary determines to be necessary for the State to cure the plan. (7) Performance achievement .— A State that does not achieve or make significant progress toward achieving the targets of the State for performance measures described in section 150(d) for the National Highway System shall include as part of the performance target report under section 150(e) a description of the actions the State will undertake to achieve the targets. (8) Process .— Not later than 18 months after the date of enactment of the MAP–21, the Secretary shall, by regulation and in consultation with State departments of transportation, establish the process to develop the State asset management plan described in paragraph (1). (f) Interstate System and NHS Bridge Conditions.— (1) Condition of interstate system.— (A) Penalty .— If a State reports that the condition of the Interstate System, excluding bridges on the Interstate System, has fallen below the minimum condition level established by the Secretary under section 150(c)(3), the State shall be required, during the following fiscal year— (i) to obligate, from the amounts apportioned to the State under section 104(b)(1), an amount that is not less than the amount of funds apportioned to the State for fiscal year 2009 under the Interstate maintenance program for the purposes described in this section (as in effect on the day before the date of enactment of the MAP–21), except that for each year after fiscal year 2013, the amount required to be obligated under this clause shall be increased by 2 percent over the amount required to be obligated in the previous fiscal year; and (ii) to transfer, from the amounts apportioned to the State under section 104(b)(2) (other than amounts suballocated to metropolitan areas and other areas of the State under section 133(d)) to the apportionment of the State under section 104(b)(1), an amount equal to 10 percent of the amount of funds apportioned to the State for fiscal year 2009 under the Interstate maintenance program for the purposes described in this section (as in effect on the day before the date of enactment of the MAP–21). (B) Restoration .— The obligation requirement for the Interstate System in a State required by subparagraph (A) for a fiscal year shall remain in effect for each subsequent fiscal year until such time as the condition of the Interstate System in the State exceeds the minimum condition level established by the Secretary. (2) Condition of nhs bridges.— (A) Penalty .— If the Secretary determines that, for the 3-year-period preceding the date of the determination, more than 10 percent of the total deck area of bridges in the State on the National Highway System is located on bridges that have been classified as in poor condition, an amount equal to 50 percent of funds apportioned to such State for fiscal year 2009 to carry out section 144 (as in effect the day before enactment of MAP–21) shall be set aside from amounts apportioned to a State for a fiscal year under section 104(b)(1) only for eligible projects on bridges on the National Highway System. (B) Restoration .— The set-aside requirement for bridges on the National Highway System in a State under subparagraph (A) for a fiscal year shall remain in effect for each subsequent fiscal year until such time as less than 10 percent of the total deck area of bridges in the State on the National Highway System is located on bridges that have been classified as in poor condition, as determined by the Secretary. (g) Environmental Mitigation.— (1) Eligible activities .— In accordance with all applicable Federal law (including regulations), environmental mitigation efforts referred to in subsection (d)(2)(O) include participation in natural habitat and wetlands mitigation efforts relating to projects funded under this title, which may include— (A) participation in mitigation banking or other third-party mitigation arrangements, such as— (i) the purchase of credits from commercial mitigation banks; (ii) the establishment and management of agency-sponsored mitigation banks; and (iii) the purchase of credits or establishment of in-lieu fee mitigation programs; (B) contributions to statewide and regional efforts to conserve, restore, enhance, and create natural habitats and wetlands; and (C) the development of statewide and regional environmental protection plans, including natural habitat and wetland conservation and restoration plans. (2) Inclusion of other activities .— The banks, efforts, and plans described in paragraph (1) include any such banks, efforts, and plans developed in accordance with applicable law (including regulations). (3) Terms and conditions .— The following terms and conditions apply to natural habitat and wetlands mitigation efforts under this subsection: (A) Contributions to the mitigation effort may— (i) take place concurrent with, or in advance of, commitment of funding under this title to a project or projects; and (ii) occur in advance of project construction only if the efforts are consistent with all applicable requirements of Federal law (including regulations) and State transportation planning processes. (B) Credits from any agency-sponsored mitigation bank that are attributable to funding under this section may be used only for projects funded under this title, unless the agency pays to the Secretary an amount equal to the Federal funds attributable to the mitigation bank credits the agency uses for purposes other than mitigation of a project funded under this title. (4) Preference .— At the discretion of the project sponsor, preference shall be given, to the maximum extent practicable, to mitigating an environmental impact through the use of a mitigation bank, in-lieu fee, or other third-party mitigation arrangement, if the use of credits from the mitigation bank or in-lieu fee, or the other third-party mitigation arrangement for the project, is approved by the applicable Federal agency. (h) TIFIA Program .— Upon Secretarial approval of credit assistance under chapter 6, the Secretary, at the request of a State, may allow the State to use funds apportioned under section 104(b)(1) to pay subsidy and administrative costs necessary to provide an eligible entity Federal credit assistance under chapter 6 with respect to a project eligible for assistance under this section. (i) Additional Funding Eligibility for Certain Bridges.— (1) In general .— Funds apportioned to a State to carry out the national highway performance program may be obligated for a project for the reconstruction, resurfacing, restoration, rehabilitation, or preservation of a bridge not on the National Highway System, if the bridge is on a Federal-aid highway. (2) Limitation .— A State required to make obligations under subsection (f) shall ensure such requirements are satisfied in order to use the flexibility under paragraph (1). (j) Critical Infrastructure.— (1) Critical infrastructure defined .— In this subsection, the term “critical infrastructure” means those facilities the incapacity or failure of which would have a debilitating impact on national or regional economic security, national or regional energy security, national or regional public health or safety, or any combination of those matters. (2) Consideration .— The asset management plan of a State may include consideration of critical infrastructure from among those facilities in the State that are eligible under subsection (c). (3) Risk reduction .— A State may use funds apportioned under this section for projects intended to reduce the risk of failure of critical infrastructure in the State. (k) Protective Features.— (1) In general .— A State may use not more than 15 percent of the funds apportioned to the State under section 104(b)(1) for each fiscal year for 1 or more protective features on a Federal-aid highway or bridge not on the National Highway System, if the protective feature is designed to mitigate the risk of recurring damage or the cost of future repairs from extreme weather events, flooding, or other natural disasters. (2) Protective features described .— A protective feature referred to in paragraph (1) includes— (A) raising roadway grades; (B) relocating roadways in a base floodplain to higher ground above projected flood elevation levels or away from slide prone areas; (C) stabilizing slide areas; (D) stabilizing slopes; (E) lengthening or raising bridges to increase waterway openings; (F) increasing the size or number of drainage structures; (G) replacing culverts with bridges or upsizing culverts; (H) installing seismic retrofits on bridges; (I) adding scour protection at bridges, installing riprap, or adding other scour, stream stability, coastal, or other hydraulic countermeasures, including spur dikes; and (J) the use of natural infrastructure to mitigate the risk of recurring damage or the cost of future repair from extreme weather events, flooding, or other natural disasters. (3) Savings provision .— Nothing in this subsection limits the ability of a State to carry out a project otherwise eligible under subsection (d) using funds apportioned under section 104(b)(1).