23 U.S.C. § 119 — National highway performance program

(a) Establishment. The Secretary must set up and run the national highway performance program. (b) Purposes. The program exists to: (1) support the condition and performance of the National Highway System (NHS); (2) support building new NHS facilities; (3) make sure federal highway money helps states hit the performance targets in their asset management plans; and (4) support work that makes the NHS more resilient to sea-level rise, extreme weather, flooding, wildfires, and other disasters. (c) Eligible Facilities. Except as subsection (d) allows, a project can only get this funding if it's on the National Highway System, as defined in section 103. (d) Eligible Projects. Money apportioned to a state under section 104(b)(1) can only be spent on a project that (1)(A) supports national goals for infrastructure condition, safety, congestion, reliability, or freight movement, and (B) fits with the planning requirements of sections 134 and 135; and (2) serves one of these purposes: (A) construction, repair, or improvement of NHS road segments; (B) building, replacing, or protecting NHS bridges, including against earthquakes, impacts, security threats, and extreme events; (C) the same kind of work on NHS tunnels; (D) inspecting and evaluating NHS bridges, tunnels, and other assets like signs, retaining walls, and drainage; (E) training bridge and tunnel inspectors; (F) building or fixing ferries and ferry facilities connecting NHS road segments; (G) work on a non-NHS highway or transit project in the same corridor as a fully access-controlled NHS highway, if it will reduce delays and improve traffic flow there and is more cost-effective than upgrading that NHS highway itself; (H) bike and pedestrian paths; (I) safety improvements on the NHS; (J) traffic-monitoring and traveler-information systems; (K) developing and running a state's asset management plan, including data and required software/equipment; (L) infrastructure-based intelligent transportation systems, including vehicle-to-infrastructure communication equipment; (M) environmental restoration and pollution cleanup; (N) controlling noxious weeds and restoring native species; (O) environmental mitigation for projects funded under this section, as described in subsection (g); (P) publicly owned bus terminals serving the NHS; (Q) putting utility lines underground alongside an eligible project; (R) resiliency improvements, including the protective features described in subsection (k)(2); and (S) protecting the NHS from cybersecurity threats. (e) State Performance Management. (1) Each state must develop a risk-based asset management plan for the NHS to improve or preserve its assets and performance. (2) The plan must include strategies that help the state hit its own targets under section 150(d) and support the national goals in section 150(b). (3) The Secretary should encourage states to include all infrastructure within the road right-of-way in the plan. (4) At minimum, the plan must include: (A) a summary of the state's NHS pavement and bridge assets and their condition; (B) asset management objectives and measures; (C) identification of performance gaps; (D) lifecycle cost and risk analyses that account for extreme weather and resilience; (E) a financial plan; and (F) investment strategies. (5) Requirement for plan: (A) if the Secretary finds a state hasn't developed and put in place a proper plan, that state's federal share of project costs drops to 65 percent for that fiscal year; (B) the Secretary must make that finding before the fiscal year begins. (6) Certification of plan development process: (A) within 90 days of a state's request, the Secretary must review the state's plan-development process and either certify it or deny certification and explain what needs fixing; (B) the Secretary must recertify the process at least once every 4 years; (C) if certification is denied, the state gets at least 90 days to fix the problems, during which no penalties apply, plus a written explanation of what to fix. (7) Performance achievement: a state that isn't hitting its NHS performance targets must explain, in its section 150(e) report, what it will do to improve. (8) Process: within 18 months of the MAP-21 law's enactment, the Secretary had to set, by regulation and with state input, the process for developing these plans. (f) Interstate System and NHS Bridge Conditions. (1) Condition of Interstate System: (A) if a state's Interstate System condition (not counting bridges) falls below the Secretary's minimum level, the state must, the following year, spend at least its fiscal year 2009 Interstate-maintenance funding amount on this program (rising 2 percent a year after fiscal year 2013), and shift 10 percent of that 2009 amount over from its other highway funds; (B) this requirement keeps applying every year until the state's Interstate condition rises back above the minimum. (2) Condition of NHS bridges: (A) if more than 10 percent of a state's NHS bridge deck area has been rated "poor condition" for the past 3 years, 50 percent of that state's fiscal year 2009 bridge-program funding must be set aside only for NHS bridge projects; (B) this set-aside stays in effect every year until the poor-condition share drops back below 10 percent. (g) Environmental Mitigation. (1) Eligible mitigation efforts include: (A) mitigation banking arrangements, such as buying credits from commercial mitigation banks, running agency-sponsored mitigation banks, or buying credits or setting up in-lieu fee programs; (B) contributing to statewide or regional habitat and wetland conservation efforts; and (C) developing statewide or regional environmental protection plans. (2) Similar banks, efforts, and plans set up under other applicable law also qualify. (3) Rules: contributions can happen before or alongside project funding, but advance contributions must follow federal law and the state's transportation planning process; and credits from an agency-sponsored bank funded under this section can only be used for projects funded under this title, unless the agency repays the federal share for any other use. (4) Where practical and approved by the relevant federal agency, project sponsors should prefer mitigation banks, in-lieu fees, or other third-party arrangements. (h) TIFIA Program. With the Secretary's approval, a state may use its apportioned funds to pay the subsidy and administrative costs of getting federal credit assistance (under chapter 6, the TIFIA program) for an eligible project. (i) Additional Funding Eligibility for Certain Bridges. (1) Funds may also go toward reconstructing, resurfacing, or otherwise fixing a bridge that isn't on the NHS, as long as it's on a Federal-aid highway. (2) A state can only use this flexibility if it's still meeting the obligations described in subsection (f). (j) Critical Infrastructure. (1) "Critical infrastructure" means facilities whose failure would seriously harm national or regional economic security, energy security, or public health or safety. (2) A state's asset management plan may take such infrastructure into account, among the facilities eligible under subsection (c). (3) A state may use program funds on projects that reduce the risk of critical infrastructure failing. (k) Protective Features. (1) A state may spend up to 15 percent of its apportioned funds each year on protective features for a non-NHS Federal-aid highway or bridge, if the feature is meant to reduce the risk or cost of future damage from extreme weather, flooding, or other disasters. (2) These protective features include: raising roadway grades; moving roads out of floodplains or landslide-prone areas; stabilizing slides and slopes; lengthening or raising bridges to let more water through; adding or enlarging drainage structures; replacing or upsizing culverts; adding seismic retrofits to bridges; adding scour protection, riprap, or similar measures at bridges; and using natural infrastructure for the same protective purpose. (3) This subsection doesn't stop a state from doing this same kind of work as a regular subsection (d) project using its regular funds.