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

Page 108 TITLE 23—HIGHWAYS § 119 thereafter, the Secretary [of Transportation] shall sub- mit to the Committee on Environment and Public Works of the Senate and the Committee on Transpor- tation and Infrastructure of the House of Representa- tives a report describing any action taken by the Sec- retary under this section. ‘‘(h) SENSE OF CONGRESS REGARDING USE OF ELIGIBLE FUNDS.—It is the sense of Congress that eligible funds made available under this Act [see Tables for classifica- tion] or title 23, United States Code, should be avail- able for obligation for transportation projects and ac- tivities in the same geographic region for which the eli- gible funds were initially made available.’’ § 119. National highway performance program (a) ESTABLISHMENT.—The Secretary shall es- tablish and implement a national highway per- formance 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 Sys- tem; (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 in- crease the resiliency of the National Highway System to mitigate the cost of damages from sea level rise, extreme weather events, flood- ing, wildfires, or other natural disasters. (c) ELIGIBLE FACILITIES.—Except as provided in subsection (d), to be eligible for funding ap- portioned 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 per- formance 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, resur- facing, restoration, rehabilitation, preserva- tion, or operational improvement of seg- ments of the National Highway System. (B) Construction, replacement (including replacement with fill material), rehabilita- tion, preservation, and protection (including scour countermeasures, seismic retrofits, impact protection measures, security coun- termeasures, and protection against extreme events) of bridges on the National Highway System. (C) Construction, replacement (including replacement with fill material), rehabilita- tion, preservation, and protection (including impact protection measures, security coun- termeasures, 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 infrastruc- ture assets on the National Highway Sys- tem, including signs and sign structures, earth retaining walls, and drainage struc- tures. (E) Training of bridge and tunnel inspec- tors, as described in section 144. (F) Construction, rehabilitation, or re- placement of existing ferry boats and ferry boat facilities, including approaches, that connect road segments of the National High- way System. (G) Construction, reconstruction, resur- facing, restoration, rehabilitation, and pres- ervation of, and operational improvements for, a Federal-aid highway not on the Na- tional 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 prox- imity to, a fully access-controlled highway designated as a part of the National High- way 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 im- prove regional traffic flow; and (iii) the construction or improvements are more cost-effective, as determined by benefit-cost analysis, than an improve- ment to the fully access-controlled high- way described in clause (i). (H) Bicycle transportation and pedestrian walkways in accordance with section 217. (I) Highway safety improvements for seg- ments of the National Highway System. (J) Capital and operating costs for traffic and traveler information monitoring, man- agement, and control facilities and pro- grams. (K) Development and implementation of a State asset management plan for the Na- tional Highway System in accordance with this section, including data collection, main- tenance, and integration and the cost associ- ated with obtaining, updating, and licensing software and equipment required for risk- based asset management and performance- based management. (L) Infrastructure-based intelligent trans- portation systems capital improvements, in- cluding the installation of vehicle-to-infra- structure communication equipment. (M) Environmental restoration and pollu- tion 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 re- lated to projects funded under this section, as described in subsection (g). (P) Construction of publicly owned intra- city or intercity bus terminals servicing the National Highway System. Page 109 TITLE 23—HIGHWAYS § 119 (Q) Undergrounding public utility infra- structure carried out in conjunction with a project otherwise eligible under this section. (R) Resiliency improvements on the Na- tional Highway System, including protective features described in subsection (k)(2). (S) Implement activities to protect seg- ments 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 Na- tional Highway System to improve or preserve the condition of the assets and the perform- ance of the system. (2) PERFORMANCE DRIVEN PLAN.—A State asset management plan shall include strate- gies leading to a program of projects that would make progress toward achievement of the State targets for asset condition and per- formance 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 encour- age States to include all infrastructure assets within the right-of-way corridor in such plan. (4) PLAN CONTENTS.—A State asset manage- ment plan shall, at a minimum, be in a form that the Secretary determines to be appro- priate and include— (A) a summary listing of the pavement and bridge assets on the National Highway Sys- tem 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 con- sideration 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 deter- mines 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 re- quest for approval of the process used by the State to develop the State asset manage- ment 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 ac- tions 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 Sec- retary denies certification under subpara- graph (A), the Secretary shall provide the State with— (i) not less than 90 days to cure the defi- ciencies of the plan, during which time pe- riod 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 Sys- tem 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 Sec- retary shall, by regulation and in consultation with State departments of transportation, es- tablish the process to develop the State asset management plan described in paragraph (1). (f) INTERSTATE SYSTEM AND NHS BRIDGE CON- DITIONS.— (1) CONDITION OF INTERSTATE SYSTEM.— (A) PENALTY.—If a State reports that the condition of the Interstate System, exclud- ing 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 appor- tioned 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 de- scribed 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 in- creased by 2 percent over the amount re- quired to be obligated in the previous fis- cal year; and (ii) to transfer, from the amounts appor- tioned to the State under section 104(b)(2) (other than amounts suballocated to met- ropolitan areas and other areas of the State under section 133(d)) to the appor- tionment 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 Inter- Page 110 TITLE 23—HIGHWAYS § 119 state maintenance program for the pur- poses described in this section (as in effect on the day before the date of enactment of the MAP–21). (B) RESTORATION.—The obligation require- ment for the Interstate System in a State required by subparagraph (A) for a fiscal year shall remain in effect for each subse- quent fiscal year until such time as the con- dition of the Interstate System in the State exceeds the minimum condition level estab- lished 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 per- cent of the total deck area of bridges in the State on the National Highway System is lo- cated on bridges that have been classified as in poor condition, an amount equal to 50 per- cent 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 require- ment 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 High- way System is located on bridges that have been classified as in poor condition, as deter- mined by the Secretary. (g) ENVIRONMENTAL MITIGATION.— (1) ELIGIBLE ACTIVITIES.—In accordance with all applicable Federal law (including regula- tions), environmental mitigation efforts re- ferred to in subsection (d)(2)(O) include par- ticipation 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 commer- cial mitigation banks; (ii) the establishment and management of agency-sponsored mitigation banks; and (iii) the purchase of credits or establish- ment of in-lieu fee mitigation programs; (B) contributions to statewide and re- gional efforts to conserve, restore, enhance, and create natural habitats and wetlands; and (C) the development of statewide and re- gional environmental protection plans, in- cluding natural habitat and wetland con- servation and restoration plans. (2) INCLUSION OF OTHER ACTIVITIES.—The banks, efforts, and plans described in para- graph (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 ad- vance of, commitment of funding under this title to a project or projects; and (ii) occur in advance of project construc- tion only if the efforts are consistent with all applicable requirements of Federal law (including regulations) and State transpor- tation 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 miti- gating 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 ar- rangement for the project, is approved by the applicable Federal agency. (h) TIFIA PROGRAM.—Upon Secretarial ap- proval 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 sec- tion. (i) ADDITIONAL FUNDING ELIGIBILITY FOR CER- TAIN BRIDGES.— (1) IN GENERAL.—Funds apportioned to a State to carry out the national highway per- formance 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 infrastruc- ture’’ means those facilities the incapacity or failure of which would have a debilitating im- pact on national or regional economic secu- rity, national or regional energy security, na- tional 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 fa- cilities in the State that are eligible under subsection (c). (3) RISK REDUCTION.—A State may use funds apportioned under this section for projects in- Page 111 TITLE 23—HIGHWAYS § 119 tended 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 Na- tional Highway System, if the protective fea- ture is designed to mitigate the risk of recur- ring damage or the cost of future repairs from extreme weather events, flooding, or other natural disasters. (2) PROTECTIVE FEATURES DESCRIBED.—A pro- tective feature referred to in paragraph (1) in- cludes— (A) raising roadway grades; (B) relocating roadways in a base flood- plain 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 in- crease waterway openings; (F) increasing the size or number of drain- age structures; (G) replacing culverts with bridges or upsizing culverts; (H) installing seismic retrofits on bridges; (I) adding scour protection at bridges, in- stalling 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 sub- section limits the ability of a State to carry out a project otherwise eligible under sub- section (d) using funds apportioned under sec- tion 104(b)(1). (Added Pub. L. 95–599, title I, § 116(a), Nov. 6, 1978, 92 Stat. 2698; amended Pub. L. 96–106, § 18, Nov. 9, 1979, 93 Stat. 799; Pub. L. 97–134, §§ 6, 7, Dec. 29, 1981, 95 Stat. 1701; Pub. L. 97–424, title I, § 116(a)(1), (2), (b), (c), Jan. 6, 1983, 96 Stat. 2109; Pub. L. 98–229, § 8(b), Mar. 9, 1984, 98 Stat. 56; Pub. L. 99–190, § 101(e) [title III, § 327], Dec. 19, 1985, 99 Stat. 1267, 1289; Pub. L. 100–17, title I, § 116(a)–(c)(1), Apr. 2, 1987, 101 Stat. 154, 155; Pub. L. 100–202, § 101(l) [title III, § 347(b)], Dec. 22, 1987, 101 Stat. 1329–358, 1329–388; Pub. L. 102–240, title I, § 1009(a), (b), (e)(1), (3)–(5), Dec. 18, 1991, 105 Stat. 1933, 1934; Pub. L. 105–178, title I, § 1107(a), (d), June 9, 1998, 112 Stat. 137; Pub. L. 105–206, title IX, § 9002(f), July 22, 1998, 112 Stat. 836; Pub. L. 112–141, div. A, title I, § 1106(a), July 6, 2012, 126 Stat. 432; Pub. L. 114–94, div. A, title I, §§ 1106, 1406(a), 1407(a), 1446(a)(1), Dec. 4, 2015, 129 Stat. 1337, 1410, 1437; Pub. L. 116–94, div. H, title I, § 129A, Dec. 20, 2019, 133 Stat. 2953; Pub. L. 117–58, div. A, title I, §§ 11105, 11524(a), Nov. 15, 2021, 135 Stat. 457, 606.) Editorial Notes REFERENCES IN TEXT The date of enactment of the MAP–21, referred to in subsecs. (e)(8) and (f)(1)(A), is deemed to be Oct. 1, 2012, see section 3(a), (b) of Pub. L. 112–141, set out as Effec- tive and Termination Dates of 2012 Amendment notes under section 101 of this title. Section 144 (as in effect the day before enactment of MAP–21), referred to in subsec. (f)(2)(A), means section 144 of this title as in effect the day before the enact- ment of Pub. L. 112–141, which amended section 144 gen- erally. Prior to amendment by Pub. L. 112–141, section 144 related to the highway bridge program. PRIOR PROVISIONS A prior section 119, Pub. L. 85–767, Aug. 27, 1958, 72 Stat. 899, related to administration of Federal aid for highways in Alaska, prior to repeal by Pub. L. 86–70, § 21(d)(3), June 25, 1959, 73 Stat. 145, effective July 1, 1959. AMENDMENTS 2021—Subsec. (b)(4). Pub. L. 117–58, § 11105(1), added par. (4). Subsec. (d)(2)(Q) to (S). Pub. L. 117–58, § 11105(2), added subpars. (Q) to (S). Subsec. (e)(4)(D). Pub. L. 117–58, § 11105(3), substituted ‘‘analyses, both of which shall take into consideration extreme weather and resilience’’ for ‘‘analysis’’. Subsec. (f)(2). Pub. L. 117–58, § 11524(a), substituted ‘‘in poor condition’’ for ‘‘structurally deficient’’ in subpars. (A) and (B). Subsec. (k). Pub. L. 117–58, § 11105(4), added subsec. (k). 2019—Subsec. (e)(5). Pub. L. 116–94 amended par. (5) generally. Prior to amendment, text read as follows: ‘‘Notwithstanding section 120, with respect to the sec- ond fiscal year beginning after the date of establish- ment of the process established in paragraph (8) or any subsequent 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 carried out by the State in that fiscal year under this section shall be 65 percent.’’ 2015—Subsec. (d)(1)(A). Pub. L. 114–94, § 1446(a)(1), sub- stituted ‘‘congestion reduction, system reliability,’’ for ‘‘mobility,’’. Subsec. (d)(2)(L). Pub. L. 114–94, § 1407(a), inserted ‘‘, including the installation of vehicle-to-infrastruc- ture communication equipment’’ after ‘‘capital im- provements’’. Subsec. (e)(7). Pub. L. 114–94, § 1406(a)(1), substituted ‘‘shall include as part of the performance target report under section 150(e)’’ for ‘‘for 2 consecutive reports sub- mitted under this paragraph shall include in the next report submitted’’. Subsec. (f)(1)(A). Pub. L. 114–94, § 1406(a)(2), sub- stituted ‘‘If a State reports that the condition of the Interstate System, excluding bridges on the Interstate System, has fallen’’ for ‘‘If, during 2 consecutive re- porting periods, the condition of the Interstate System, excluding bridges on the Interstate System, in a State falls’’ in introductory provisions. Subsecs. (h) to (j). Pub. L. 114–94, § 1106, added subsecs. (h) to (j). 2012—Pub. L. 112–141 amended section generally. Prior to amendment, section related to interstate mainte- nance program. 1998—Subsec. (a). Pub. L. 105–178, § 1107(a)(1), added subsec. (a) and struck out former subsec. (a) which read as follows: ‘‘The Secretary may approve projects for re- surfacing, restoring and rehabilitating routes on the Interstate System designated under sections 103 and 139(c) of this title and routes on the Interstate System designated before the date of enactment of this sen- tence under section 139(a) and (b) of this title; except that the Secretary may only approve a project pursu- ant to this subsection on a toll road if such road is sub- ject to a Secretarial agreement provided for in sub- section (e). Sums authorized to be appropriated for this section shall be out of the Highway Trust Fund and shall be apportioned in accordance with section 104(b)(5)(B) of this title.’’ Page 112 TITLE 23—HIGHWAYS § 119 Subsec. (b). Pub. L. 105–178, § 1107(d)(1), as added by Pub. L. 105–206, § 9002(f), substituted ‘‘104(b)(4)’’ for ‘‘104(b)(5)(B)’’ in first sentence and ‘‘104(b)(5)(A) (as in effect on the date before the date of enactment of the Transportation Equity Act for the 21st Century)’’ for ‘‘104(b)(5)(A)’’ in two places. Pub. L. 105–178, § 1107(a)(2), (3), redesignated subsec. (d) as (b) and struck out former subsec. (b) which read as follows: ‘‘Not later than one year after the date of issuance of initial guidelines under section 109(m) of this title each State shall have a program for the Inter- state system in accordance with such guidelines. Each State shall certify on January 1st of each year that it has such a program and the Interstate system is main- tained in accordance with that program. If a State fails to certify as required or if the Secretary determines a State is not adequately maintaining the Interstate sys- tem in accordance with such program then the next ap- portionment of funds to such State for the Interstate system shall be reduced by amounts equal to 10 per cen- tum of the amount which would otherwise be appor- tioned to such State under section 104 of this title. If, within one year from the date the apportionment for a State is reduced under this subsection, the Secretary determines that such State is maintaining the Inter- state system in accordance with the guidelines the ap- portionment of such State shall be increased by an amount equal to the reduction. If the Secretary does not make such a determination within such one year period the amount so withheld shall be reapportioned to all other eligible States.’’ Subsec. (c). Pub. L. 105–178, § 1107(d)(2), as added by Pub. L. 105–206, § 9002(f), substituted ‘‘104(b)(4)’’ for ‘‘104(b)(5)(B)’’ wherever appearing. Pub. L. 105–178, § 1107(a)(2), (3), redesignated subsec. (f) as (c) and struck out heading and text of former subsec. (c). Text read as follows: ‘‘Activities authorized in sub- section (a) may include the reconstruction of bridges, interchanges, and over crossings along existing Inter- state routes, including the acquisition of right-of-way where necessary, but shall not include the construction of new travel lanes other than high occupancy vehicle lanes or auxiliary lanes.’’ Subsec. (d). Pub. L. 105–178, § 1107(a)(3), redesignated subsec. (g) as (d). Former subsec. (d) redesignated (b). Subsec. (e). Pub. L. 105–178, § 1107(a)(2), struck out heading and text of subsec. (e). Text read as follows: ‘‘Preventive maintenance activities shall be eligible under this section when a State can demonstrate, through its pavement management system, that such activities are a cost-effective means of extending Inter- state pavement life.’’ Subsecs. (f), (g). Pub. L. 105–178, § 1107(a)(3), redesig- nated subsecs. (f) and (g) as (c) and (d), respectively. 1991—Pub. L. 102–240, § 1009(e)(1), substituted ‘‘mainte- nance program’’ for ‘‘System resurfacing’’ in section catchline. Subsec. (a). Pub. L. 102–240, § 1009(e)(5)(A), (B), sub- stituted ‘‘and rehabilitating’’ for ‘‘, rehabilitating, and reconstructing’’ and struck out at end ‘‘The Federal share for any project under this subsection shall be that set forth in section 120(c) of this title.’’ Subsec. (c). Pub. L. 102–240, § 1009(e)(3), amended sub- sec. (c) generally. Prior to amendment, subsec. (c) read as follows: ‘‘Reconstructing as authorized in subsection (a) of this section may include, but is not limited to, the addition of travel lanes and the construction and reconstruction of interchanges and overcrossings along existing completed interstate routes, including the ac- quisition of right-of-way where necessary.’’ Subsec. (e). Pub. L. 102–240, § 1009(e)(4), amended sub- sec. (e) generally, substituting present provisions for provisions authorizing Secretary to approve projects on toll roads only after reaching agreement with State highway department and public authorities that road will become free upon collection of tolls sufficient to liquidate cost of road and outstanding bonds and cost of maintenance, operation and debt service during pe- riod of toll collections, provisions relating to repay- ment to Federal Treasury, or reduction in apportion- ment, if road did not become free after collection of sufficient tolls, and provisions requiring pre-existing agreements to be treated as agreements under subsec. (e). Subsec. (f). Pub. L. 102–240, § 1009(e)(5)(C), substituted ‘‘Surface Transportation Program’’ for ‘‘Primary Sys- tem’’ in heading. Subsec. (f)(1). Pub. L. 102–240, § 1009(b), (e)(5)(D), (E), substituted ‘‘or rehabilitating’’ for ‘‘rehabilitating, or reconstructing’’, substituted ‘‘sections 104(b)(1) and 104(b)(3)’’ for ‘‘section 104(b)(1)’’, and inserted ‘‘the State is adequately maintaining the Interstate System and’’ after ‘‘routes and’’. Subsec. (f)(2). Pub. L. 102–240, § 1009(e)(5)(E), sub- stituted ‘‘sections 104(b)(1) and 104(b)(3)’’ for ‘‘section 104(b)(1)’’ in introductory provisions. Subsec. (g). Pub. L. 102–240, § 1009(a), added subsec. (g). 1987—Subsec. (a). Pub. L. 100–17, § 116(c)(1), sub- stituted ‘‘subsection (e)’’ for ‘‘section 105 of the Fed- eral-Aid Highway Act of 1978’’. Subsec. (d). Pub. L. 100–17, § 116(a), amended subsec. (d) generally. Prior to amendment, subsec. (d) read as follows: ‘‘Upon application by a State and approval by the Secretary, the Secretary may authorize the trans- fer of so much of the amount apportioned to such State for any fiscal year under paragraph (5)(A) of subsection (b) of section 104 of this title, as does not exceed the Federal share of the cost of segments of the Interstate System open to traffic in such State (other than high occupancy vehicle lanes), in the most recent cost esti- mate, to the apportionment under paragraph (5)(B) of subsection (b) of section 104 of this title, except that not more than 50 per centum of the total apportion- ment under such paragraph (5)(A) for a fiscal year shall be transferred under this subsection for such fiscal year. The next cost estimate submitted to Congress under paragraph (5)(A) of subsection (b) of such section 104 of the cost of completing segments of the Interstate System open to traffic in that State (other than high occupancy vehicle lanes) shall be reduced for such State in an amount equal to the amount transferred under this subsection. Notwithstanding any other pro- vision of law, and for the purposes of this subsection, the phrase ‘segments of the interstate system open to traffic’ shall include a proposed four-lane, limited ac- cess highway, 6.4 miles in length, the construction of which will relocate to a southern alignment a portion of an existing interstate highway which was originally built without the aid of funds authorized by section 108(b) of the Federal-Aid Highway Act of 1956, as amended, and which connects to the east with an inter- state highway on which tolls are charged. The con- struction of the proposed highway shall include a bridge over the Monongahela River.’’ Subsec. (e). Pub. L. 100–17, § 116(b), added subsec. (e). Subsec. (f). Pub. L. 100–202 substituted ‘‘amount not to exceed’’ for ‘‘amount equal to’’ in par. (2)(B). Pub. L. 100–17, § 116(b), added subsec. (f). 1985—Subsec. (d). Pub. L. 99–190 inserted provisions which brought within the phrase ‘‘segments of the interstate system open to traffic’’ a proposed four-lane limited access highway, 6.4 miles in length, the con- struction of which will relocate to a southern align- ment a portion of an existing highway originally built without the aid of Federal funds, connecting to the east with an interstate highway on which tolls are charged, with the proposed highway to include a bridge over the Monongahela River. 1984—Subsec. (a). Pub. L. 98–229 substituted provision authorizing the Secretary to approve projects des- ignated under sections 103 and 139(c) of this title and routes on the Interstate System designated before Mar. 9, 1984, under section 139(a) and (b) of this title for pro- vision authorizing the Secretary, beginning with funds apportioned for the fiscal year 1980, to approve projects under sections 103 and 139(c) of this title and, beginning with funds apportioned for fiscal year 1984, to approve routes or portions thereof on the Interstate System designated before Jan. 6, 1983, under section 139(a) of this title, which routes or portions were so designated Page 113 TITLE 23—HIGHWAYS § 120 in conjunction with the withdrawal of approval of an- other route or portion on the Interstate System under section 103(e)(4) of this title and provision that the Fed- eral share be that as set forth in section 120(c) of this title for provision that the Federal share be that as set forth in section 120(a) of this title and that effective on or after Dec. 29, 1981, the Federal share be that as set forth in section 120(c) of this title. 1983—Subsec. (a). Pub. L. 97–424, § 116(a)(1), inserted provision that, additionally, beginning with funds ap- portioned for fiscal year 1984, the Secretary may ap- prove projects for resurfacing, restoring, rehabili- tating, and reconstructing those routes or portions thereof on the Interstate System designated before Jan. 6, 1983, under section 139(a) of this title (other than routes on toll roads not subject to a Secretarial agree- ment provided for in section 105 of the Federal-Aid Highway Act of 1978) which routes or portions were so designated in conjunction with the withdrawal of ap- proval of another route or portion thereof on the Inter- state System under section 103(e)(4) of this title. Pub. L. 97–424, § 116(a)(2), substituted ‘‘under this sub- section’’ for ‘‘designated under sections 103 and 139(c) of this title’’ before ‘‘shall be that set forth in section 120(c) of this title’’. Subsecs. (b), (c). Pub. L. 97–424, § 116(b), redesignated the second of two sections designated (b) as (c). Subsec. (d). Pub. L. 97–424, § 116(c), added subsec. (d). 1981—Subsec. (a). Pub. L. 97–134, §§ 6(a), 7, substituted ‘‘rehabilitating, and reconstructing routes of the Inter- state System designated under sections 103 and 139(c) of this title’’ for ‘‘and rehabilitating those lanes in use for more than five years on the Interstate System’’, and inserted provision that effective on and after Dec. 29, 1981, the Federal share for projects financed by funds apportioned under section 104(b)(5)(B) of this title for resurfacing, restoring, rehabilitating, and recon- structing routes of the Interstate System designated under sections 103 and 139(c) of this title shall be that set forth in section 120(c) of this title. Subsec. (b). Pub. L. 97–134, § 6(b), added subsec. (b) providing that reconstruction may include the addition of travel lanes and the construction and reconstruction of interchanges and overcrossings along existing com- pleted interstate routes, including the acquisition of right-of-way where necessary. 1979—Subsec. (b). Pub. L. 96–106 substituted ‘‘January 1st’’ for ‘‘October 1st’’ and ‘‘next apportionment of funds to such State’’ for ‘‘funds apportioned to such State for that fiscal year’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2021 AMENDMENT Amendment by Pub. L. 117–58 effective Oct. 1, 2021, see section 10003 of Pub. L. 117–58, set out as a note under section 101 of this title. EFFECTIVE DATE OF 2015 AMENDMENT Amendment by Pub. L. 114–94 effective Oct. 1, 2015, see section 1003 of Pub. L. 114–94, set out as a note under section 5313 of Title 5, Government Organization and Employees. EFFECTIVE DATE OF 2012 AMENDMENT Amendment by Pub. L. 112–141 effective Oct. 1, 2012, see section 3(a) of Pub. L. 112–141, set out as an Effec- tive and Termination Dates of 2012 Amendment note under section 101 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 1991 AMENDMENT Amendment by Pub. L. 102–240 effective Dec. 18, 1991, and applicable to funds authorized to be appropriated or made available after Sept. 30, 1991, and, with certain exceptions, not applicable to funds appropriated or made available on or before Sept. 30, 1991, see section 1100 of Pub. L. 102–240, set out as a note under section 104 of this title. TRANSITION PERIOD Pub. L. 112–141, div. A, title I, § 1106(b), July 6, 2012, 126 Stat. 437, provided that: ‘‘(1) IN GENERAL.—Except as provided in paragraph (2), until such date as a State has in effect an approved asset management plan and has established perform- ance targets as described in sections 119 and 150 of title 23, United States Code, that will contribute to achiev- ing the national goals for the condition and perform- ance of the National Highway System, but not later than 18 months after the date on which the Secretary [of Transportation] promulgates the final regulation required under section 150(c) of that title, the Sec- retary shall approve obligations of funds apportioned to a State to carry out the national highway performance program under section 119 of that title, for projects that otherwise meet the requirements of that section. ‘‘(2) EXTENSION.—The Secretary may extend the tran- sition period for a State under paragraph (1) if the Sec- retary determines that the State has made a good faith effort to establish an asset management plan and per- formance targets referred to in that paragraph.’’ INTERSTATE NEEDS STUDY Pub. L. 105–178, title I, § 1107(c), June 9, 1998, 112 Stat. 138, directed the Secretary, in cooperation with States and metropolitan planning organizations, to conduct a study on the future condition of and needed improve- ments to the Interstate System and to transmit a re- port on the study no later than Jan. 1, 2000. GUIDANCE TO STATES Pub. L. 102–240, title I, § 1009(c), Dec. 18, 1991, 105 Stat. 1933, directed the Secretary to develop guidance to states regarding how much project funding was attrib- utable to expanding Interstate highway or bridge ca- pacity and how to determine adequate maintenance of the Interstate System. INNOVATIVE TECHNOLOGIES Pub. L. 97–424, title I, § 142, Jan. 6, 1983, 96 Stat. 2128, authorized the Secretary, for fiscal years through Sept. 30, 1985, to increase by 5 percent the Federal share of funding for certain projects using significant amounts of asphalt additives or recycled materials. § 120. Federal share payable (a) INTERSTATE SYSTEM PROJECTS.— (1) IN GENERAL.—Except as otherwise pro- vided in this chapter, the Federal share pay- able on account of any project on the Inter- state System (including a project to add high occupancy vehicle lanes and a project to add auxiliary lanes but excluding a project to add any other lanes) shall be 90 percent of the total cost thereof, plus a percentage of the re- maining 10 percent of such cost in any State containing unappropriated and unreserved public lands and nontaxable Indian lands, indi- vidual and tribal, exceeding 5 percent of the total area of all lands therein, equal to the percentage that the area of such lands in such State is of its total area; except that such Fed- eral share payable on any project in any State shall not exceed 95 percent of the total cost of such project.