SECTION 1. SHORT TITLE; TABLE OF CONTENTS. [Legislation] This section provides that the bill may be cited as the Safe, Accountable, Flexible, and Efficient Transportation Equity Act of 2003 (SAFETEA), and provides a table of contents.
SEC. 2. DEFINITIONS. [Legislation] This section defines terms that are used in the bill.
TITLE I - FEDERAL-AID HIGHWAYS
SUBTITLE A -- FUNDING
SEC. 1101. AUTHORIZATION OF APPROPRIATIONS. [Legislation]
This section authorizes sums out of the Highway Trust Fund (other than Mass Transit Account) for, the Interstate maintenance program, the National Highway System, the bridge program, the surface transportation program, the congestion mitigation and air quality improvement program, and other programs. New programs include a core apportioned program, the Highway Safety Improvement Program, and an Infrastructure Preservation and Maintenance Program that would promote projects with immediate benefits for highway system condition and operation.
SEC. 1102. OBLIGATION CEILING. [Legislation]
Section 1102 establishes limitations on obligations for Federal-aid highway and highway safety construction programs authorized by this Act, and provides the way in which these obligation limitations would be administered. This section is similar to section 1102 of the Transportation Equity Act for the 21st Century (TEA-21).
Subsection (a) sets forth the obligation limitation amounts for fiscal years 2004 through 2009 for Federal-aid highway and highway safety construction programs.
Subsection (b) provides exceptions from the obligation limitations established in subsection (a). Paragraphs (1) through (8) are repeated from TEA-21. Paragraph (9) is added to address 3-year obligation authority (OA) made available under TEA-21 for research programs and "no-year" OA made available for certain programs and projects under TEA-21 or in subsequent appropriations acts.
The 3-year OA for research programs under section 1102(e) of TEA-21 that was made available for FY 2002 would remain available through 2004, and the OA for FY 2003 would remain available through FY 2005.
Section 1102(g) of TEA-21 made the OA for high priority projects, the Appalachian development highway system, funding for the Woodrow Wilson Memorial Bridge Authority Act, and $2 billion of minimum guarantee funds available until used. Under TEA-21, the OA for these specified funds remains available in addition to any obligation limitation imposed on obligations for Federal-aid highway and highway safety construction programs in future fiscal years. The appropriations bills for fiscal years 1999 through 2003 also provided no-year OA for these specified programs and certain other programs and projects.
Subsection (b)(9) would exempt the "no-year" obligation authority and the 3-year research obligation authority made available in prior years from the annual obligation ceiling for Federal-aid highways and highway safety construction programs. The purpose of this addition is to clarify that this obligation authority continues past the term of the authorization bill and is not subject to any obligation limitation set for a succeeding fiscal year in the reauthorization bill.
Subsection (c) differs from the TEA-21 provision. Under TEA-21, in years when the total obligation limitation is less than the total new authorizations, the authorizations for these allocated programs are reduced to the amount of limitation they receive. The authorizations that are removed or "lopped off" from these programs are then distributed to the States as additional funding that can be used on STP-eligible projects. This section would repeal the "lop off" provisions. In this Act, the repeal of the "lop off" provisions would not have a significant impact because the obligation limitation set in this section would exceed the contract authority subject to the limitation authorized in this Act.
There are two additional changes to the distribution of obligation authority provision. First, the proposed infrastructure performance and maintenance program would be added to the programs, listed in paragraph (1), that receive 100 percent obligation authority. Second, high priority projects and the Woodrow Wilson Memorial Bridge Authority Act funds would be deleted from the provision in paragraph (2) granting "no-year" obligation authority because this bill does not provide an authorization for either of these programs.
Subsections (d), (e), and (f) are substantively unchanged from the TEA-21 provisions.
Subsection (g) dealing with the obligation authority adjustment for revenue aligned budget authority (RABA) would be modified by substituting the term "adjustment" for the term "increase" each place that it appears.
Subsection (h) sets forth the obligation limitation for administrative expenses for fiscal years 2004 through 2009.
The Disadvantaged Business Enterprise program is addressed in section 1811 of the bill.
SEC. 1103. APPORTIONMENTS. [Legislation]
Subsection (a) of this section would amend 23 U.S.C. 104(a) to change the Federal-aid highway program administrative takedown percentage from 1-1/16 to an amount not to exceed 1.4 percent of the specified programs.
Subsection (b) would: (1) clarify from which title 23 programs, including the minimum guarantee program, metropolitan planning funds are to be set aside; (2) clarify that one percent of funding, not a lesser percentage, shall be deducted for metropolitan planning from the specified programs; (3) move a provision, which allows a metropolitan planning organization to make unused planning funds available to the State to be used for statewide planning, from section 134(n) of title 23 to section 104(f)(3); and (4) move a provision concerning matching funds from section 104(f)(3) to new paragraph (6) for clarity.
Subsection (c) would repeal the definition of "State" under section 1103(n) of TEA-21. In TEA-21, "State" was defined to include only the 50 States and the District of Columbia for purposes of apportioning funds under sections 104, 105, 144, and 206 of title 23. This definition excluded Puerto Rico. By repealing this section, the definition of "State" for purposes of apportioning funds under sections 104, 105, 144, and 206 of title 23, would be the definition under section 101(a)(32) of title 23, which includes Puerto Rico. Thus, Puerto Rico would be included in formula apportionments and minimum guarantee.
Subsection (d) would provide funding from the Surface Transportation Program for the preferred option determined by a study for highway access near the Executive Office complex.
Subsection (e) would extend the funding from the National Highway System (NHS) program for the Alaska Highway. The funding would be extended from 2004 through 2009.
SEC. 1104. MINIMUM GUARANTEE. [Legislation]
This section would continue the TEA-21 provision (23 U.S.C. 105) authorizing
additional funds (such sums as necessary) for allocation to ensure that a
State's percentage of total apportionments is at least 90.5 percent of its
percentage contribution to the Highway Trust Fund.
Subsection (a) provides that only those States listed in subsection (b)
would receive a minimum guarantee apportionment through the minimum guarantee
formula. It would also provide that one million dollars is the minimum amount
any State listed in subsection (b) would receive through the minimum guarantee
formula. The new infrastructure performance and maintenance program, described
below, would be added to the list of programs included in the minimum guarantee
Current law excludes Puerto Rico from the determination of the guaranteed
percentage shares and the minimum guarantee formula computation. A special rule
would be added to provide Puerto Rico $1 million per year of minimum guarantee
funding. This treatment is consistent with the change proposed in section
1103(b) of this bill to use the title 23 definition of State, which includes
Puerto Rico, in order to include Puerto Rico in formula apportionments.
One-half of the total amount to be apportioned under this section would be
apportioned to the States for Interstate Maintenance, NHS, STP, bridge, CMAQ,
and Highway Safety Improvement in amounts proportional to each program's share
of the total apportionments to each State for all such programs for each fiscal
year. The funds would be added to each State's section 104 formula
apportionment for such program. The remaining 50 % of minimum guarantee funds
would be allocated to the States for the flexible uses provided under section
133, the STP.
New subsection (f)(4) would provide that a State's percentage return shall
be obtained through a calculation that excludes funds apportioned to Puerto
SEC. 1105. REVENUE ALIGNED BUDGET AUTHORITY (RABA). [Legislation]
This provision would amend section 110 of title 23, U.S.C., to extend the
RABA provision through FY 2009. It would amend section 110 to provide that if
the RABA adjustment in a fiscal year is negative, the amount of contract
authority apportioned to the States for that year shall be reduced by an amount
equal to the negative RABA. Under TEA-21, negative adjustments were delayed
until the succeeding fiscal year.
This provision would add the proposed highway safety improvement program to
the list of programs for which States would receive funds made available for
apportioned programs under RABA.
This provision would also make technical corrections to section 110,
including striking subsections that have already been carried out.
SUBTITLE B - NEW PROGRAMS
SEC. 1201. INFRASTRUCTURE PERFORMANCE AND MAINTENANCE
This section would establish a new Infrastructure Performance and
Maintenance Program (IPAM) within the Federal-aid Highway Program. The program
would provide States with $1 billion for each of fiscal years 2004-2009, and
would focus on projects that preserve existing highway facilities or alleviate
traffic chokepoints. The program seeks to promote projects that result in
immediate benefits for highway system condition and performance while avoiding
long-term commitments of funds.
Only highway projects for system preservation, preventative maintenance, or
operational improvement that are already eligible under the Interstate
Maintenance Program, the National Highway System Program, and the Surface
Transportation Program would be eligible for funding under this new program.
Operational improvements would only be at points of recurring highway
congestion (i.e., bottlenecks) and would include intelligent transportation
system initiatives. Projects could also include limited physical alteration of
existing facilities such as interchange ramp improvements, short sections
(i.e., no more than about one mile) of added through lanes, and intersection
The program is structured to promote the types of projects that can be
undertaken and completed within a short timeframe. Funds under this program
could not be transferred to another Federal agency or any other program,
notwithstanding sections 104 and 126 of title 23.
Funds would be apportioned to the States (including the District of Columbia
and Puerto Rico) using the same formula that is currently used to apportion STP
funds. Although funds apportioned under this program would be available for
obligation as though they were apportioned under chapter 1 of title 23
(contract authority), they would not be subject to any deduction or set-aside
requirement that might otherwise apply under such chapter. The Federal share
payable would be determined in accordance with the provisions of section 120 of
title 23, based on the type of project funded.
The funds would be subject to the overall obligation ceiling for the
Federal-aid highway program, but States would receive obligation authority for
funds under this program in an amount equal to the amount of contract authority
The funds would have to be obligated by a State within six months of
apportionment or the Secretary would withdraw the funds and accompanying
obligation authority and redistribute the funds and authority to States that
have fully obligated their initial apportionment under this program and
demonstrated that they are able to obligate additional funds before the end of
the fiscal year. All funds apportioned in a fiscal year would have to be
obligated before the end of that fiscal year or they would lapse.
SEC. 1202. CLARIFY FEDERAL-AID ELIGIBILITY FOR CERTAIN SECURITY PROJECTS. [Legislation]
This provision would amend the definitions of "construction" and
"maintenance" in 23 U.S.C. 101 to include transportation-related homeland
security projects. These security projects would include those for detecting
potential attacks, preventing actual attacks, protecting the highway
infrastructure against attacks and resulting damages, ensuring emergency
preparedness, and developing the ability for quick response and recovery. The
projects would be subject to countermeasures to reduce the identified security
vulnerabilities and would be identified through the regular transportation
planning process (as required by a related amendment to 23 U.S.C. 120).
SEC. 1203. INTERSTATE HIGHWAY SYSTEM. [Legislation]
This section would change the declaration of policy in section 101 of title
23, United States Code, to update the section to reflect the change in emphasis
on the Interstate System from initial construction to reconstruction and
preservation. The change would also delineate the critical importance of the
Interstate System to the current and future economic vitality, national
security, and general welfare of the Nation.
SEC. 1204. MILITARY VEHICLE ACCESS (OVERSIZE AND OVERWEIGHT VEHICLES; RELIEF FROM TOLLS). [Legislation]
This section would authorize the Secretary of Transportation, in
consultation with the Secretary of Defense and the Secretary of Homeland
Security, to issue orders and procedures to expedite the highway movement of
marked military vehicles and convoys. These procedures may include the
establishment of temporary expanded vehicle size, weight, and
oversize/overweight permit requirements, and provisions for exempting such
vehicles from the payment of tolls and expedited movement through toll
facilities. This section would preempt inconsistent State and local laws and
regulations, and would exempt such procedures and orders from compliance with
the requirements of prior notice and opportunity to comment under the
Administrative Procedure Act (5 U.S.C. § 553).
SEC. 1205. FREIGHT TRANSPORTATION GATEWAYS; FREIGHT INTERMODAL CONNECTIONS. [Legislation]
In the interests of international freight security, quality of life in and
around key freight gateways, and in recognition of the expected increase in
congestion in these same areas, the Nation's surface transportation system and
its intermodal connectors must be prepared to accommodate expected traffic
increases in an efficient and safe manner. Federal, State, local, and private
sector partnerships are key to achieving success in maintaining and advancing
the quality of the Nation's intermodal freight transportation network to
support productivity, national security, and safety, while balancing
The purpose of the Freight Gateways Program, through a combination of
eligibility changes, innovative finance emphasis, and targeted investment, is
to enable systemic, intermodal improvements for freight movement into and
through major trade transport gateways and hubs, and improvements to the
transportation infrastructure that connects these gateways to the Nation's
mainline transportation networks. The definition of "gateway" is broad,
allowing for wide-ranging discussion between States and freight stakeholders to
determine the scope and scale of initiatives needed to enhance freight movement
to, from, and through a gateway.
In new section 325 of title 23, States would be directed to ensure that
intermodal freight transportation needs are integrated into the project
development process, including transportation planning. States and localities
would be encouraged to adopt innovative financing strategies for freight
gateway improvements, including new user fees and private sector investment. In
addition, States would be directed to create a freight transportation
coordinator position to coordinate public and private collaboration in regional
solutions to freight transportation and freight gateway problems.
This section also would amend section 133 of title 23, to make Intermodal
Freight Transportation Projects eligible for funding under the Surface
Transportation Program. This proposal would allow funding of publicly owned
intermodal transfer facilities or intermodal access to such facilities and
would be limited to transportation infrastructure modifications necessary to
facilitate intermodal access to, from, and within ports. Intermodal ITS
projects would also encouraged.
This section also would amend section 103(b) of title 23, to set aside
dedicated funding for intermodal freight and Strategic Highway Network
(STRAHNET) connectors from funds apportioned for the NHS. The amount of such
funding would be determined by the proportion of freight/STRAHNET connector
miles in a State compared to the total NHS mileage in the State, or 2% of funds
apportioned for the NHS in a fiscal year, whichever is greater. A State may be
exempted from the required set-aside by showing that connectors in the State
are in good condition and providing an adequate level of service.
The intent of these provisions is to direct use of Federal-aid dollars: (1)
for intermodal freight movement to relieve congestion related to existing (and
future) high levels of truck traffic at major gateways and hubs; and (2) to
facilitate the movement of military vehicles and equipment.
A 90% Federal share would be authorized for projects on intermodal and
STRAHNET connectors. Most connectors are in local ownership, and the match is
often a problem for local jurisdictions.
Section 1304 of this bill would amend section 181 of title 23 to include "a
public or private freight rail facility" in the definition of "project" for
purposes of the Transportation Infrastructure Finance and Innovation Act
All of these initiatives are designed to provide program incentives to
States and local officials to expand the ability of existing programs to
address emerging gateway needs and to encourage the voluntary adoption of new
funding and financing strategies to leverage additional State/local/private
investment in these critical areas.
In regard to the Department of Defense, changes throughout this section
would support mobilization of military vehicles and improvements to STRAHNET
connectors in the interests of national security.
This section, in combination with proposed amendments to TIFIA under section
1304 of the bill, would broaden the flexibility of States and metropolitan
planning organizations to support Freight Gateway projects and other major
freight transportation improvements and to implement innovative public-private
solutions to complex freight challenges important to our economy, economic
competitiveness, and security.
SEC. 1206. AUTHORITY FOR ALTERNATIVE TIMESAVING PROCEDURES FOR CRITICAL TRANSPORTATION SECURITY PROJECTS. [Legislation]
Critical, time-sensitive highway and public transportation security projects
are projects that are necessary to address an imminent threat to a
transportation facility or to repair damage to a transportation facility caused
by a terrorist attack against the United States. Examples of such projects
include: structural hardening, relocation of roads from underneath critical
structures, property acquisition to create secure zones, or repairing or
replacing a bridge or tunnel that has been damaged or destroyed by a terrorist
attack. The types of projects that are included in this definition will be more
specifically defined in regulations issued by the Secretary. Any critical,
time-sensitive security project shall be identified by the Secretary in
consultation with the owner-operator of the transportation facility. Threats to
transportation facilities will be assessed in consultation with the Department
of Homeland Security.
This section would direct the Secretary of Transportation to develop and
implement expedited procedures to advance critical, time-sensitive highway and
mass (public) transit security projects, including expedited procedures for
planning, environmental review, public involvement, acquisition of
right-of-way, and contracting. Environmental reviews include any environmental
reviews, analysis, opinion, or issuance of an environmental permit, license, or
approval required pursuant to Federal law. The procedures will be developed
with the concurrence of other affected Federal agencies whose authorities will
be affected by the procedures and in consultation with any other Federal
agencies that the Secretary determines have an interest in the procedures. For
the limited purpose of expediting interim measures needed to address the threat
of imminent harm to a transportation facility, the Secretary may provide that
these procedures are exclusive of any other statute relating to planning,
environmental reviews, public involvement, acquisition of right-of-way, and
contracting, and therefore they may be inconsistent with such other statutes,
or, in effect, "waived" for purposes of these procedures. However, the
Secretary may exercise this authority only if he or she determines that such
measures are necessary for the protection of the public and receives the
concurrence of any other Federal agency responsible for administering the
relevant parts of such statutes.
Recognizing the importance of these projects, the other agencies will work
closely with the Secretary of Transportation in developing expedited procedures
for critical, time-sensitive security projects and will assist in drafting
regulatory provisions to be issued by the Secretary of Transportation to
implement any procedures upon which they have concurred. The procedures to be
developed under this section shall be established by rules to be issued by the
Secretary no later than one year after the enactment of this law. We anticipate
that other agencies would make any conforming changes expeditiously in their
regulations, as appropriate.
SUBTITLE C -- FINANCE
SEC. 1301. FEDERAL SHARE. [Legislation]
Section 120 of title 23 would be amended to: (1) simplify the calculation of
the sliding scale applicable to all projects; (2) remove the requirement,
currently in (b)(2), for a State electing the increased Federal share to enter
into an agreement; and (3) require a revision to the rates as needed. In
addition, the term "public domain lands" would be replaced with "public lands"
because of the difficulty in obtaining the information on public domain
The provisions that allow for a lower Federal share in subsections (a)(2)
and (b)(2) would be removed because the authority for a lower Federal share is
contained in section 120(i).
SEC. 1302. TRANSFER OF HIGHWAY AND TRANSIT FUNDS. [Legislation]
This provision would clarify that title 23 funds may be transferred by the
Secretary to the Federal Transit Administration for other than a transit
capital project, provided such project is eligible for assistance under title
23. This amendment would also permit funds derived from the Highway Account of
the Highway Trust Fund to be transferred by the Secretary to another Federal
agency if that agency has expertise with regard to the type of project to be
funded and the Secretary determines that the agency should administer the
funding. Such transfers would accelerate project delivery for those unique
kinds of projects.
The Secretary could, at the request of a State, transfer funds apportioned
or allocated to that State that are authorized or administered under this
title, along with an equal amount of obligation authority, to another State or
to the Federal Highway Administration. The funds transferred could be used for
the same purpose and in the same manner for which they were authorized. Such
transfer would have no effect on any apportionment formula used to distribute
funds to the States under sections 104, 105, or 144 of title 23.
The provision described in paragraph (4) would allow a State to request a
transfer of its apportioned funds to another State or to FHWA. A transfer would
simplify the process for administering a project that is jointly funded by two
or more States. Concurrence by the metropolitan planning organization would be
required to transfer Surface Transportation Program funds that are suballocated
to urbanized areas over 200,000 population. This means, for example, that a
single FHWA account could be established annually for the National Cooperative
Highway Research Program (NCHRP). When commitments are received from the
States, the funds would be transferred to a single account, and bills from the
Transportation Research Board would be paid from that account. This would
eliminate the labor-intensive requirement of distributing each bill back to the
State accounts. This change would encourage pooling of funds to avoid
duplication of effort, to examine projects of mutual interest, and to address
issues of regional or national significance.
SEC. 1303. STATE INFRASTRUCTURE BANK PILOT PROGRAM. [Legislation]
This section authorizes a new State Infrastructure Bank pilot program. The
proposed pilot program would limit participation to no more than five States,
including States that entered into a cooperative agreement under the State
Infrastructure Bank pilot program authorized by the Transportation Equity Act
for the 21st Century (TEA-21). States interested in participating in
the pilot program would be required to submit an application to the Secretary.
This section would require the Secretary to evaluate the applications based on
criteria the Secretary establishes, provided that the criteria would include:
the State's ability to provide non-Federal funds to capitalize the bank; the
existence of State enabling legislation that clearly allows for full State
Infrastructure Bank participation; the State's strategy for encouraging
non-Federal repayment sources from project sponsors; the amount of Federal
funds the State will commit to the State Infrastructure Bank as a percentage of
its Federal-aid apportionments; the State's eligibility under TEA-21; and the
State's past experience with a State Infrastructure Bank, including the TEA-21
pilot program, or comparable financing mechanisms.
A State selected by the Secretary would enter into a cooperative agreement
with the Department. If a selected State does not fund its State Infrastructure
Bank within 90 days of the execution of the cooperative agreement, the
Secretary would have the authority to terminate the cooperative agreement with
that State and select another State for inclusion in the pilot program. If the
Secretary determines that a selected State is not implementing the State
Infrastructure Bank in accordance with the cooperative agreement, the Secretary
would have the authority to prohibit a State from contributing additional
Federal funds to its State Infrastructure Bank.
Under TEA-21, in addition to funds from certain transit programs and rail
programs, States could transfer to an infrastructure bank the total amount of
funds apportioned to it under the National Highway System program, Surface
Transportation Program (except for funds allocated for safety programs and the
transportation enhancements program), Interstate Maintenance program, minimum
guarantee, and bridge program. Under the proposed pilot program, funding would
be derived only from the highway and transit programs, with the amount of
apportioned funds transferred to the infrastructure bank limited to 10 percent.
Experience has shown that States contribute less than 10 percent of the
eligible funds to their State Infrastructure Bank. This limitation would also
prevent a State from putting an entire category of funds in the State
Infrastructure Bank. The proposal also would establish highway and transit
accounts within the State Infrastructure Banks.
The TEA-21 pilot program limited Federal disbursements from a State
Infrastructure Bank to an annual rate of not more than 20 percent of the amount
designated by the State for the infrastructure bank's capitalization. TEA-21
also required the Secretary and the State to revise a cooperative agreement
entered into under the National Highway System Designation Act of 1995 (Pub. L.
104-59). This pilot program would eliminate both of these requirements. The
limitation on Federal disbursements has no practical application under this
pilot program. The elimination of the requirement to revise the cooperative
agreement would clarify that States that created a State Infrastructure Bank
under the National Highway System Designation Act of 1995 could continue to
operate under the requirements of that Act and would not be required to amend
their State Infrastructure Bank agreement to comply with this pilot program.
However, a State operating a State Infrastructure Bank under the National
Highway System Designation Act of 1995 could not add new Federal funds to the
Another change from TEA-21 is that the State Infrastructure Banks would be
required to report annually, instead of biennially, to the Secretary. This
section also would make some changes to the definitions section.
The remaining provisions remain substantively unchanged from the TEA-21
pilot program, including the application of Federal requirements to projects
financed from repayments to an infrastructure bank from projects assisted by
SEC. 1304. TRANSPORTATION INFRASTRUCTURE FINANCE AND INNOVATION ACT (TIFIA) AMENDMENTS. [Legislation]
Section 1304 would amend sections 181 through 189 of title 23.
The proposed change to section 181(3) conforms the existing language to
conventional capital markets terminology.
The proposed elimination of existing section 181(7) reflects the
Department's decision not to use local servicers to perform the enumerated
duties on behalf of the Secretary. Using a local servicer for any particular
TIFIA credit facility would mean using multiple servicers for the program. The
Department believes that ongoing servicing of TIFIA loans should be managed by
a single entity, and it has contracted directly with a major banking firm to
service the complete portfolio of TIFIA credit instruments.
The proposed change to section 181(8)(D), as redesignated, expands the
definition of freight-related projects eligible for TIFIA assistance. The
provision would also make eligible a group of such related projects, each of
which separately might not meet the threshold requirements, to apply for TIFIA
credit assistance. The cost of freight transportation improvements is borne by
both the public and private sectors. Limited funds available from either sector
demand consideration of innovative ways to fund critical projects of national,
regional, and local economic significance.
The proposed change to section 182(a)(1) simplifies the provision regarding
statewide and metropolitan planning requirements. The existing provision
contained needlessly specific language that could be interpreted to constrain
TIFIA assistance in the case of a project with a construction timetable that
extended beyond the typical three-year approved State Transportation
Improvement Program (STIP).
The proposed change to section 182(a)(2) eliminates the reference to a local
servicer (see discussion above) and clarifies that a State, local government,
public authority, public private partnership or any other legal entity may
submit an application.
The proposed change to section 182(a)(3) lowers the threshold cost for
eligible projects from $100 million to $50 million.
The proposed change to section 182(a)(4) clarifies that the revenues
dedicated to repay the TIFIA credit instrument must also secure the senior
project obligations. The purpose of this modification is to prevent a project
applicant from securing the TIFIA credit instrument with a revenue source of a
lesser quality than that used to secure the senior debt. One of TIFIA's key
financial disciplines is the requirement that a project's senior debt be rated
in the investment grade category, but this offers security to DOT only if the
same repayment source is being pledged to both the senior debt obligations and
the subordinate TIFIA credit instrument. In such a structure, the investment
grade rating for senior debt helps DOT evaluate its credit risk as a
subordinate lender; although the TIFIA instrument itself may be sub-investment
grade, the higher rating on the senior debt indicates that the project's
overall risk profile is manageable.
The proposed change to section 182(b)(1) clarifies the distinction between
the program's threshold requirements and project selection criteria.
The proposed change to section 182(b)(2)(B) clarifies that it is possible
for the TIFIA credit instrument to be the senior obligation. Experience
implementing the program has shown that certain projects may not issue debt
obligations senior to the TIFIA credit instrument. In those cases, the TIFIA
lien will be senior and thus will have to be investment grade.
The proposed change to section 183(a)(1)(A) clarifies the purpose of loan
The proposed change to section 183(a)(4) codifies a DOT regulation that
requires the project's senior obligations to receive an investment-grade rating
in order to execute a secured loan agreement. This change eliminates the
possibility of any funds being disbursed prior to the receipt of an investment
The proposed change to section 183(b)(2) ensures that the
amount of the TIFIA credit instrument may not exceed that of the senior project
obligations. TIFIA is intended to be a minority project investor who benefits,
via an investment grade rating on the senior debt, from the discipline of the
capital markets. If the amount of senior debt is substantially smaller than the
TIFIA loan, however, the debt might obtain an investment grade rating on the
basis of a speculative revenue source unlikely to cover total debt service, and
thus the senior rating would not reflect the relative creditworthiness of the
TIFIA loan. In order to manage the risk in this situation, DOT's response has
been to require that TIFIA assistance not exceed the amount of senior debt.
The proposed change to section 183(b)(3) has the same purpose as the change
to section 182(a)(4).
The proposed change to section 183(b)(4) removes the ambiguity concerning
the meaning of the word "marketable."
The proposed elimination of section 183(c)(3) deletes the description of
sources of repayment funds because the subject is already covered in section
The proposed changes to section 184(a)(2) clarify the individual purposes
for which line of credit proceeds can be made available.
The proposed changes to section 184(b)(3) would ease the restrictions on
funding draws on a line of credit in order to help a borrower avoid a payment
default. The line of credit is intended to benefit the rating on senior debt by
acting as a contingent revenue source for the purpose of pro-forma calculations
of senior debt service coverage. However, the current requirement that all
project reserve funds be depleted before accessing the line dilutes this
effectiveness, since bond indentures typically treat unrestored draws upon an
issuer's reserve accounts as a technical default. The line of credit,
therefore, is available too late in the flow of funds to provide a meaningful
credit rating benefit. Having the ability to draw upon the line to avoid a
technical default would improve its usefulness.
The proposed changes to section 184(b)(4) conform the interest rate setting
mechanism for the line of credit with that for secured loans. A borrower that
utilizes both a secured loan and a line of credit for the same project could,
if the relative interest rates on these instruments vary significantly, be
motivated to manipulate its use in the event of a revenue shortfall. The
proposed change would allow the DOT to execute both such agreements on the same
date at the same interest rate.
The proposed change to section 184(b)(5) has the same purpose as the
proposed changes to sections 183(b)(3) and 182(a)(4).
The proposed changes to section 184(c)(2) clarify language regarding the
scheduling of principal and interest repayments.
The proposed elimination of section 184(c)(3) deletes the description of
sources of repayment funds because the subject is already covered in section
The proposed changes to sections 185(a), 185(b), and 185(c) have the same
purpose as the proposed elimination of existing section 181(7), and clarify
that the Secretary may establish fees to cover the cost of servicing TIFIA
The proposed change to section 185(d) clarifies that the program may retain
outside counsel to assist in the underwriting and servicing of TIFIA credit
The proposed changes to section 188(a)(1) would maintain the program's
annual funding authorization at the $130 million level established in TEA-21
for fiscal year 2003. The proposed authorization level represents 5 percent of
the program's credit limitation, consistent with the TEA-21 authorization
The proposed new section 188(a)(2) would increase the limitation on annual
administrative costs from $2 million to $3 million, to be drawn from program
The proposed change to section 188(c) would maintain the program's annual
loan limitation at the $2.6 billion level established in TEA-21 for fiscal year
2003. The proposed loan limitation is consistent with the proposed funding
level and an assumed 5 percent subsidy rate.
The proposed elimination of section 189 reflects the fact that the
Department has fulfilled this requirement.
SEC. 1305. INTERNATIONAL REGISTRATION PLAN AND INTERNATIONAL FUEL TAX AGREEMENT FACILITATION. [Legislation]
The International Fuel Tax Agreement (IFTA) and the International
Registration Plan (IRP) are agreements among the U.S. States and Canadian
Provinces that facilitate the efficient collection and distribution of fuel use
taxes and apportioned registration fees among each member jurisdiction. Under
both programs, each motor carrier designates its home State or Province as its
"base jurisdiction," and that base jurisdiction is responsible for collecting
the fuel use taxes and registration fees for itself and all other member
jurisdictions in which its motor carriers operate. With the implementation of
the North American Free Trade Agreement (NAFTA) and the anticipated
liberalization of access for Mexican carriers into the United States, the
participation in these programs by Mexican carriers is expected. Currently, the
Mexican government imposes and collects fuel taxes and registrations fees
differently than the U.S. States and Canadian Provinces.
Participation by Mexican states in the IRP and IFTA programs is currently
being evaluated by U.S. States and Canadian Provinces under the aegis of the
National Governors Association. In the interim, it would be necessary for
Mexican motor carriers to use individual U.S. States or Canadian Provinces as
their base jurisdictions. States have expressed the concern that augmenting
their systems to accommodate Mexican carriers could entail some incremental
costs that would be burdensome. This section would allow the Secretary to
provide assistance to States to help with administrative needs resulting from
serving as a base jurisdiction for motor carriers from Mexico.
SEC. 1306. COMMERCIALIZED REST AREA PILOT PROJECTS. [Legislation]
This section would allow States to conduct pilot projects on Interstate
Highways that would permit commercial operations at existing or new rest areas.
Such commercial operations include providing goods, services, and information
that are of interest to the traveling public, State promotional or
tourism-oriented items, and commercial advertising and displays (visible only
in the rest areas). The State could permit private operators to run the
To participate in a pilot project, States would have one year from the date
of enactment to submit proposals to the Secretary. Proposals would describe the
types of goods, services, and information to be provided at the rest area and
include a plan for evaluating the results of the pilot projects. In addition,
States would have to demonstrate that the proposed projects help implement the
strategies developed in the "Study of Adequacy of Parking Facilities" prepared
pursuant to section 4027 of TEA-21, and proposals would have to contain a
review and update of the State's action plan for addressing commercial truck
parking shortages. The Secretary would have to determine that the proposed
projects conform to safety standards for passenger and commercial vehicles
including lighting, security, and safe access to the Interstate roadway.
The States would be required to use the net income derived from the
commercial operations for projects eligible under title 23. If vending machines
are a part of the rest area, the provisions of the Randolph-Sheppard Act would
SEC. 1307. HIGHWAY USE TAX EVASION PROJECTS. [Legislation]
The Highway Use Tax Evasion program supports State and Federal efforts to
enhance motor fuel tax enforcement. To make the program more effective, this
provision would amend section 143 of title 23 to: (1) dedicate funding for
intergovernmental enforcement efforts; (2) allow projects for identification of
tax evasion in the area of foreign imported fuel; (3) assist States and Indian
Tribes in addressing issues related to the collection of State motor fuel
taxes; and (4) provide for annual reporting on examinations, criminal
investigations, and audits by the States and the Internal Revenue Service
The provision would further amend section 143 to require the Secretary of
Transportation to enter into three memoranda of understanding with the
Commissioner of the IRS -- one for the purpose of completing, maintaining, and
operating the excise summary terminal activity reporting system (ExSTARS); the
second for the purpose of developing, operating, and maintaining a registration
system for pipelines, vessels, and barges, and their operators, that make bulk
transfers of taxable fuel; and the third for the purpose of establishing,
operating, and maintaining an electronic database of heavy vehicle highway use
tax payments. The IRS would be required to report twice a year on the status of
the three projects covered by the memoranda of understanding.
Funding allocated under this program would supplement State highway use and
fuel tax enforcement programs; enable the IRS to complete, operate, and
maintain ExSTARS; and enable the IRS to establish and maintain the registration
system and the electronic database.
SUBTITLE D - PROGRAM EFFICIENCIES AND IMPROVEMENTS -- SAFETY
SEC. 1401. NATIONAL HIGHWAY SAFETY gOAL; NATIONAL BLUE RIBBON COMMISSION ON HIGHWAY SAFETY. [Legislation]
The social and economic costs of highway accidents are estimated at more
than $230 billion each year. In 2001, there were more than 42,000 fatalities
and 3 million injuries. To reverse this trend, the highway safety community
must work together to significantly reduce highway fatalities and injuries.
This section would establish a national goal of reducing highway fatalities.
Identification of a national safety goal has been very successful in helping
European countries achieve excellent safety results, including low levels of
highway crashes, fatalities, and injuries.
Section 1401(a) would amend section 101 of title 23 by adding a declaration
that it is in the national interest to reduce the number of deaths related to
traffic accidents and authorize a national initiative targeted at saving lives
through improved engineering, education, enforcement, and emergency
Section 1401(b) would establish the National Blue Ribbon Commission on
Highway Safety. The Commission would have 15 members, including the Secretary
of Transportation or his or her delegate; the Administrators of FHWA, FRA,
NHTSA, and FMCSA, or their delegates; and 10 members representing State and
local government, law enforcement, the safety community, and public health,
appointed by the Secretary from nominees submitted by the Senate Committee on
Environment and Public Works and the Senate Committee on Commerce, Science, and
Transportation, and by the House Committee on Transportation and
The purpose of the Commission would be to identify a realistic national goal
for reduction of highway fatalities, develop a consensus within the highway
safety community and the public in support of the goal, recommend a
comprehensive plan with specific strategies for achieving the goal, and provide
such legislative recommendations as the President judges necessary and
expedient. Seven million dollars in funding, allocated over fiscal years
2004-2009, would be authorized for the Commission and study.
SEC. 1402. HIGHWAY SAFETY IMPROVEMENT PROGRAM. [Legislation]
This provision would authorize a new "core" Federal-aid funding program for
highway safety, under new section 150 of title 23, replacing previous title 23
provisions that required that States "set aside" a minimum of 10% of their
Surface Transportation Program (STP) funding for safety purposes. The creation
of a new safety "core" program greatly reinforces the importance of safety as
an integral part of the Federal-aid highway program. It also reflects the
importance of highway safety to our social and economic health and future
productivity. The National Highway Traffic Safety Administration (NHTSA)
estimates that highway fatalities and injuries cost society more than $230
billion every year.
Elevating safety to the status of a "core" funding program within the
Federal-aid highway program also recognizes that, as a Nation, we should not
accept the fact that 42,000 of our citizens are killed and over 3 million are
injured annually on the highway system. The Highway Safety Improvement Program
is designed to reduce these fatalities, reinforce FHWA's safety partnerships,
and complement NHTSA's and the Federal Motor Carrier Safety Administration's
(FMCSA) safety programs.
Section 150(a) would direct the Secretary to establish and implement a
highway safety improvement program. In order to receive funds, under section
150(b)(1) States must have a process in place that analyzes highway safety
problems and opportunities and produces a program of projects for funding based
on this analysis (the State's Highway Safety Improvement Program (HSIP)). The
statewide program would identify hazardous locations, sections, and elements,
including roadside obstacles and unmarked or poorly marked roads that may
constitute a danger to motorists, bicyclists, pedestrians, and other highway
users. States would also have crash data systems and the ability to perform
safety problem identification and countermeasure analysis. This provision would
require the Secretary to formulate programmatic guidelines for the States' use,
which should include, at a minimum, the following components:
(1) Strategic and Performance-based Goals for the HSIP. State programs would
adopt strategic and performance-based goals that address safety problems and
opportunities on all public roads within the State, including Tribal roadways,
focus resources on areas of greatest need, and complement programs developed
under section 402 of title 23.
(2) Data Improvement. States would advance their capabilities in traffic
records data collection, analysis, and integration with other sources of safety
data, such as roadway inventories. The data program would include all public
roads, including Tribal roads, and improve the identification of highway
locations, sections, and elements that may constitute a danger to motorists,
pedestrians, and bicyclists. Expenditures on State data programs would be
complementary to the data improvement programs supported by sections 412 and
(3) Program of Improvements. The proposed program would provide States with
the flexibility to address potential as well as existing highway safety
problems. States would determine the priorities for correcting hazardous
roadway locations, sections, and elements, including railway-highway crossing
improvements, based on crash data analysis. Priorities would also include
opportunities for preventing the development of hazards. Based on these
priorities, States would schedule and implement projects for hazard correction
(4) Evaluation. States would be required to establish an evaluation process
to assess the results of safety improvement projects carried out under this
section and use the results to set priorities for future projects.
Under this provision, States could obligate HSIP funds for safety
infrastructure improvement projects that correct or improve hazardous roadway
locations or features, including railway-highway crossing improvements, or
proactively address highway safety problems on any public road or publicly
owned bicycle or pedestrian pathway or trail. The proposed Federal share for
projects carried out under this section would be 90%.
Under this provision, beginning in fiscal year 2005 and for each fiscal year
thereafter, 10 percent of the funds available to a State to carry out the
highway safety improvement program established in accordance with this section
would be required to be obligated for projects under section 402, unless by
October 1 of the fiscal year in which funds become available to a State, the
State has enacted a primary safety belt law or the State demonstrates that the
safety belt use rate in that State meets or exceeds 90 percent. Activities
carried out under this section would be required to be consistent with a
strategic highway safety plan described in proposed new section 151 of title
23. If a State has not already adopted such a plan, it would be required to do
so if subject to the proposed safety belt incentive provision.
An additional new section would be added to title 23: Section
151-Flexibility for safety initiatives. This proposal would provide additional
flexibility to States to use section 150 funds for public awareness, education,
and enforcement activities, not otherwise eligible under section 150, where
such activities and projects are consistent with a strategic State highway
safety plan and comprehensive safety planning process. This provision is
included as an incentive for States to develop and implement comprehensive,
data-driven, performance-based, strategic highway safety plans that address the
engineering, education, enforcement, and emergency services elements of highway
The proposed new section specifies that a State strategic highway safety
plan must be based on a collaborative process that includes major State, local,
and Tribal safety stakeholders (including the Governor's Representative for
Highway Safety, State DOT safety and planning offices, persons responsible for
administering section 130 at the State level, State traffic records
coordinating committee, local transportation agencies, State emergency medical
services program, State motor carrier safety program, State and local law
enforcement, and Operation Lifesaver); and is certified by the Secretary,
through FHWA and NHTSA, as based on a comprehensive, collaborative process and
effective analyses of State crash data. In developing a plan, a State should
consider the results of existing State transportation and highway safety
planning processes. Activities must be consistent with the State strategic
highway safety plan to qualify for the flexible use of funds available under
sections 150 and 402(k).
This provision would clarify that the development of a State strategic
highway safety plan would not require changes in the planning processes, plans,
or programs of other State transportation or highway safety agencies. To
qualify for the additional funding flexibility, State agencies are only
required to participate in a collaborative process to share information and
assist in the analysis of safety data to produce a strategic highway safety
The provision specifies that funding transfers between section 150 (the new
FHWA core Highway Safety Improvement Program) and section 402 could not exceed
50 percent of the funds authorized for section 150 or for section 402(k)
(Performance Grants, including the safety belt use law incentive grants
The provision makes conforming amendments to title 23 to reflect repeal of
the section 152 hazard elimination program and elimination of the section
133(d)(1) set-aside of apportioned funds for safety.
SEC. 1403. OPERATION LIFESAVER. [Legislation]
This section would amend section 104 of title 23 to increase the set-aside
from STP funds for Operation Lifesaver from $500,000 to $600,000 for each
SEC. 1404. HIGHWAY SAFETY PROGRAMS; CERTIFICATION OF PUBLIC ROAD
Section 1404 would eliminate the requirement that only the Governor can
certify a State's public road mileage, which is one of the factors used to
determine the funding each State receives for its highway safety program. This
change would provide increased flexibility to the State, by allowing a State
department of transportation to certify the public road mileage.
SUBTITLE E - PROGRAM EFFICIENCIES AND IMPROVEMENTS -- PLANNING
SEC. 1501. METROPOLITAN PLANNING. [Legislation]
The highway and transit metropolitan planning provisions would be combined
and relocated to chapter 52 of title 49, U.S.C. See title VI of this bill for
the substantive provisions.
SEC. 1502. STATEWIDE PLANNING. [Legislation]
The bill would amend the statewide planning provisions currently located at
section 135 of title 23, U.S.C., and provide a common statewide planning
section for both the Federal Highway Administration and the Federal Transit
Administration in chapter 52 of title 49, U.S.C. See title VI of this bill for
the substantive provisions.
SEC. 1503. STATE PLANNING AND RESEARCH. [Legislation]
This section would move State planning and research (SPR) from section 505
(in Chapter 5) of title 23 to section 104 in Chapter 1. Chapter 5 addresses
research, development, and technology (RD&T) funds available to the
Secretary, whereas the SPR program is part of the States' apportioned funds and
more appropriately belongs in Chapter 1.
As amended, this section increases the SPR set-aside by 1/2 percent to 2-1/2
percent to fund improved data collection by the States and indicates that SPR
funds are also set aside from the minimum guarantee program under section
This section clarifies that freight planning, safety planning,
transportation systems management and operations-related planning activities,
transportation-related land use planning, and transportation-related growth
management activities within the metropolitan and statewide planning processes
are eligible for SPR funds. In addition, planning capacity building activities
and asset management activities are eligible for SPR funds. Transportation
systems management and operations related planning activities include support
for regional operations collaboration and coordination activities, as defined
in proposed section 165 of title 23 (see section 1701) that are associated with
regional improvements such as traffic incident management, technology
deployment, emergency management and response, traveler information, and
regional congestion relief. This section also adds the term "local" to "public
transportation" for consistency throughout the section and makes other changes
in wording for clarity.
This section changes the mandatory percent of SPR funds for RD&T
activities from 25 to 20, but does not change the amount of funds for RD&T
because of the 1/2 percent increase in total funds. This section establishes a
new "mandatory" use of SPR funds for improved data collection to provide
information needed by the various levels of government for fact-based
decisionmaking, but allows the use of such funds for other activities eligible
for SPR funds if a State's data collection activities meet quality assurance
Elsewhere in this proposal are individual proposals for State action, such
as participation in the highway safety improvement program. In addition to
other funds, SPR funds are available for these undertakings.
SEC. 1504. CRITICAL REAL PROPERTY ACQUISITION. [Legislation]
This section provides that, in certain limited circumstances, title 23 funds
may participate in a State's costs incurred in acquiring parcels of real
property, considered to be critical for any project proposed for funding under
title 23, prior to the completion of environmental reviews for property
acquisition. The Secretary's approval would be required for the acquisition of
each parcel before Federal funds could participate in its cost and the number
of critical acquisitions on any given project would be limited, so as not to
significantly affect alternatives. Prior to acquisition approval, the Secretary
must determine that the property is offered for sale on the open market and
that acquisition is critical because the property value is increasing
significantly, there is imminent threat of development of the property, or the
property is necessary for implementation of the project's stated goals.
The acquisition of a critical parcel would also be considered an exempt
project for purposes of the transportation conformity regulations.
This section would enable States to use Federal funds to acquire
expeditiously a limited number of parcels that are potentially needed for
future transportation purposes, and are threatened by future economic
development. "Critical parcels" are typically those with a high probability of
use for transportation purposes. The early acquisition of such parcels would
maintain viable transportation options.
Environmental reviews and approvals would be required before physical
construction, demolition, or clearing could occur. States could not retain the
Federal-aid share of the proceeds if a parcel was sold or leased. This section
would give States the opportunity to reserve future alignment alternatives
while allowing timely and cost-saving acquisitions.
SEC. 1505. PLANNING CAPACITY BUILDING INITIATIVE. [Legislation]
This section establishes a planning capacity building initiative to
strengthen metropolitan and statewide transportation planning under Chapter 52
of title 49, and to enhance Tribal capacity to conduct joint transportation
planning under Chapter 2 of title 23. Priority would be given to planning
practices and processes that support homeland security planning, performance
based planning, safety planning, operations planning, freight planning, and
integration of environment and planning. The initiative would be administered
by the Federal Highway Administration in cooperation with the Federal Transit
Administration and funded from the Surface Transportation Program at $20
million per year.
SUBTITLE F - PROGRAM EFFICIENCIES AND IMPROVEMENTS -- ENVIRONMENT
SEC. 1601. CONGESTION MITIGATION AND AIR QUALITY IMPROVEMENT PROGRAM (CMAQ). [Legislation]
Section 149 of title 23 would be amended to more clearly specify that
"maintenance of a national air quality standard" means that, for purposes of
this section, any CMAQ-funded project must contribute to air quality
maintenance by reducing emissions through new or enhanced transportation
facilities or services, rather than merely maintaining existing transportation
facilities or services.
Subsection (b) is clarified to specify that funded projects or programs in
nonattainment and maintenance areas must provide emission reductions that
contribute to the attainment or maintenance of the National Ambient Air Quality
Standard (NAAQS) for the given pollutant. Projects that reduce emissions of the
pollutant or precursor that provides the greatest likelihood of contributing to
attainment or maintenance of the associated criteria pollutant would receive
priority for CMAQ funds. The metropolitan planning organization or State is
encouraged to consult with the State air quality agency with respect to whether
reductions in nitrogen oxide (NOx) emissions or reductions in VOC emissions
provide a greater benefit in reducing ambient ozone concentrations; or whether
reductions in directly emitted particulate matter or reductions of emissions of
a precursor provide the greatest benefit in reducing ambient PM-10 or PM-2.5
Subsection (b) is also amended to remove the outdated paragraph allowing
projects to reduce any type of emission instead of emissions related to their
nonattainment or maintenance status and to remove the prohibition on funding
voluntary programs to remove from use pre-1980 cars and light trucks.
An addition is made to subsection (b)(3) of the same section to include
specific eligibility for projects or programs to reduce emissions per vehicle.
This clarification would emphasize the CMAQ eligibility of technology-based
projects and programs to reduce vehicle emissions, such as anti-idling
equipment and heavy-duty diesel retrofits.
A technical correction is made to subsection (c) of the same section to
include maintenance areas as well as nonattainment areas in the titles of the
A new subsection (f) is added to the section to encourage review of
estimated emissions reductions by State and local air agencies to provide
perspective on which proposals would be the best candidates with respect to
reducing emissions. States, MPOs, and transit agencies, in consultation with
State and local air quality agencies, are encouraged to work cooperatively to
develop criteria for project selection and to make decisions over which
projects and programs to fund under the CMAQ program.
A new subsection (g) is added to the section to provide for a national
program of evaluation and assessment. Section 104 of title 23 is amended by
adding new subsection (o), authorizing the Secretary to use 0.5 percent each
year from the annual CMAQ apportionments to carry out the program. DOT, in
consultation with EPA, would use these funds to conduct appropriate assessments
and develop other evaluation data to provide information regarding
effectiveness at reducing emissions and relieving congestion. Assessment
results will be shared with State and local transportation and air quality
agencies prior to release. It is intended that this national evaluation will
lead to better project selection by States and metropolitan planning
The CMAQ apportionment formula in section 104(b)(2) is changed to include
nonattainment and maintenance areas for fine particulate matter (PM-2.5) and
for ozone under the new 8-hour standard. EPA is expected to designate these
areas as nonattainment in 2004, which is expected to represent a large
expansion in the number of U.S. citizens living in nonattainment areas.
The weighting factor for ozone (under both the old one-hour standard and the
new eight-hour standard), carbon monoxide, and PM-2.5 maintenance areas is set
at 1.0 (previously 0.8) to reduce the funding loss that one-hour ozone and
carbon monoxide areas face as they redesignate from nonattainment to
maintenance status. Under this new weighting factor of 1.0, maintenance areas
will still get less CMAQ funding than they did as nonattainment areas in all
cases except "marginal" areas under the one-hour ozone standard, which will get
the same amount, holding all other variables constant.
The factor for submarginal areas has been dropped since there are no longer
any submarginal areas under the one-hour ozone standard. The only one has now
been redesignated as a maintenance area.
The weighting factor for the eight-hour ozone nonattainment areas is set at
1.0 to reflect that these areas will have lower design values when compared to
areas designated as nonattainment under the 1-hour standard. Specifically, an
eight-hour nonattainment area, or any portion thereof, which is not also a
one-hour ozone area, will have a weighting factor of 1.0. Where the one-hour
standard is still in effect, those weighting factors previously provided under
title 23 and left unchanged would still govern.
Areas designated nonattainment under the new PM-2.5 standard are provided a
weighting factor of 1.2 to reflect the relatively greater impact on mortality
and health of fine PM pollution when compared with ozone and carbon
This section would also be changed to focus CMAQ funding on those counties
that are actually part of a designated nonattainment area for CO. Based on
holdover language contained in ISTEA and not fully addressed by TEA-21, an
additional weighting factor had previously been applied to entire ozone
nonattainment or maintenance areas when only a small portion was also
designated as nonattainment or maintenance for carbon monoxide. In effect,
current legislative language apportions some funds for counties that have no
carbon monoxide problem. This change would correct that oversight.
The provision for CO maintenance areas in subparagraph (C)(ii), which
provided an additional weighting factor of 1.1, has been removed. In its place,
subparagraph (C) is amended to provide an additional weighting of 1.2 for areas
that are in nonattainment or maintenance status for CO and nonattainment or
maintenance for ozone.
Subparagraph (D) provides an additional weighting of 1.2 for areas that are
in nonattainment or maintenance status for fine PM and nonattainment or
maintenance for either ozone or CO. It also provides that PM-2.5 nonattainment
and maintenance areas that are nonattainment or maintenance for both ozone and
CO will receive an additional weighting factor of 1.2 over and above the
additional weighting factor of 1.2 provided for in subparagraph (C).
SEC.1602. EFFICIENT ENVIRONMENTAL REVIEWS FOR PROJECT DECISIONMAKING. [Legislation]
This section revises previous section 1309 of the Transportation Equity Act
for the 21st Century to make it more effective in achieving
environmental streamlining on highway construction projects. This is
accomplished through the following changes.
First, the changes would clarify that this section has a dual purpose of
expediting project delivery and protecting the environment. In addition, the
changes would encourage the use of the "Enlibra" principles as initially
developed by the Western Governors Association and adopted by the National
Governors Association (Policy Statement NR-1) to the extent practicable in the
development of highway construction and public transit projects. Used together,
these principles establish a sound basis for interaction among Federal, State,
and local governments and tribes in developing policies and making decisions
with respect to the environment.
Second, the changes would amend the current requirement in section 1309
regarding coordinated environmental reviews by clarifying that such reviews may
apply to a particular project or may apply to an entire class of projects or to
a program. It would also clarify that local agencies and Federally recognized
tribes, in addition to Federal and State agencies, may participate in memoranda
of understanding, where appropriate, to establish cooperatively developed time
periods for review.
Third, the changes would clarify that the project sponsor has the authority
for initiating the coordinated environmental review process for projects. In
addition, while time periods would be established by the Secretary and the
affected agencies, the establishment of time periods would occur only when
requested by the project sponsor. This change gives more of a role to project
sponsors in developing the time periods. In addition, since negotiating time
periods can itself take a substantial amount of time, it provides project
sponsors with the flexibility to ask for establishment of time periods only
where they would be most effective. These changes also clarify that the
Secretary may extend the time for review upon any good cause shown. This would
include project delays that may not have been due to environmental reviews. The
Department of Transportation will continue to track and report the amount of
time that it takes to complete the environmental review process on Federally
assisted highway construction and public transit projects.
Fourth, changes will be made to clarify the law regarding the preparation of
environmental documents under the National Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq. ). These changes are intended to address the uncertainty
created by the Tenth Circuit's decision in Utahns for Better Transportation
v. U.S. Department of Transportation, 2002 U.S. App. LEXIS 19055, which
held that an environmental impact statement may not be prepared by a State for
a highway project requiring Federal approval but for which no Federal funding
was to be used. These changes are also intended to address the Second Circuit's
decision in Sierra Club v. U.S. Army Corps of Engineers, 701 F.2d 1011
(1983), in which the Court held that the Corps of Engineers could not adopt an
environmental impact statement that was prepared by a State department of
transportation, even though it was independently reviewed and evaluated by the
Federal Highway Administration before it was issued and approved. These
proposed changes, incorporated as a new subparagraph (d), confirm the
long-standing practice under regulations issued by the Council on Environmental
Quality and by the Federal Highway and Federal Transit Administrations that
permit State and local governments to be joint lead agencies with the U.S.
Department of Transportation in preparing environmental documents. As a joint
lead agency, the State or local government will be allowed to prepare the
environmental document, so long as the U.S. Department of Transportation
furnishes guidance and participates in such preparation, and independently
evaluates the document. The document must be approved and adopted by the
Secretary prior to the Secretary taking any action or making any approval based
on such document. The provisions of this subparagraph apply regardless of
whether the Secretary's approval or action results in Federal funding. The
Secretary will ensure that the project sponsor complies with all design and
mitigation commitments made in such a document, or that the document is
appropriately supplemented if changes to the project become necessary. Any
document prepared in accordance with this section will be considered a Federal
environmental document that may be adopted by another Federal agency, subject
to any conditions imposed under regulations issued by the Council of
Environmental Quality or any other Federal agency.
NEPA section 102(2)(D) allows a State agency that has statewide jurisdiction
to prepare an EIS for a project funded under a Federal program of grants to
States. Transit agencies whose projects are financially assisted by FTA are
State or local governmental authorities as defined in 49 USC 5302(a)(6), but
the overwhelming majority of them are not State agencies of statewide
jurisdiction, and they are not assisted by an FTA program of grants to States.
The FTA grant programs that fund major projects provide funding directly to
transit agencies, not to the States. Therefore, the public agencies that plan,
develop, construct, maintain, and operate metropolitan transit systems do not
enjoy the authorities provided by NEPA Section 102(2)(D). Most public transit
agencies responsible for transit projects are technically "cooperating
agencies" in the preparation of FTA environmental documents, though, of
necessity, the transit agencies perform a de facto co-lead role in NEPA
reviews. The proposed provision would recognize the role of State and local
transit agencies in planning their own projects and would allow them to serve
as joint lead agencies with FTA in NEPA reviews without the threat of
litigation concerning that role. This would be consistent with the practice
currently permitted under the CEQ regulations relating to the roles of lead and
cooperating agencies (40 CFR Part 1500).
Fifth, the changes would clarify the dispute resolution process by giving
authority to initiate dispute resolution procedures to State Governors in
addition to the Secretary of Transportation or to the head of any Federal
agency subject to the time period under this subsection.
Sixth, editorial changes are being made to the last sentence in the
subsection on State agency participation to clarify that participation by all
State agencies with jurisdiction by law is intended to be a condition of a
State's participation, unless the Secretary determines that such participation
is not in the public interest. With respect to quasi-independent agencies
within the State, the Secretary may find that their participation is not "in
the public interest" if the State does not have the authority to compel their
participation. Further, to eliminate confusion regarding State participation,
this section does not include the TEA-21 definition of "Federal agency" that
included a State agency. Instead, a corresponding addition is being made to
subsection (g)(1) to clarify that Federal assistance can be provided to State
agencies (in addition to State departments of transportation) that are
participating in the coordinated environmental review process. Also, to
eliminate confusion, section (h)(1) is being revised to remove the reference to
State courts, since there are no circumstances under which any final Federal
agency action taken under this section could be reviewed by a State court.
Seventh, the changes would clarify that the Department of Transportation and
Federally recognized tribes are included in the category of affected Federal
agencies that may receive funds to help expedite reviews, and that funds
available for the Federal Lands Highway Program may also be used for this
purpose. Changes would also clarify that funds would be available for
programmatic measures that might expedite the environmental review of classes
of projects or programs.
Eighth, the changes would establish a new statute of limitations of one
hundred eighty days for legal challenges to Federal agency decisions made in
connection with the issuance of permits, licenses, or approvals for highway
construction or public transit projects. Under current law, there is no uniform
statute of limitations that applies to all decisions of Federal agencies made
in connection with highway construction or public transit projects. By default,
in circumstances where there is no specific applicable statute of limitations,
courts usually have applied the general six-year statute of limitations that
applies for challenges to actions under the Administrative Procedure Act for
legal challenges relating to highway construction or public transit projects.
This long window of opportunity for filing lawsuits has at times created
uncertainty regarding project advancement. In addition, it has given plaintiffs
the ability to file lawsuits well after a project is underway and well after
they were aware of a cause of action. The new statute of limitations is
intended to provide a reasonable amount of time for plaintiffs to raise legal
challenges to highway construction or public transit projects while at the same
time eliminating the risk of a project being delayed or enjoined by litigation
after it is well underway and significant investment has been made in it. By
its terms, this statute of limitations does not apply to a challenge that no
permit, license, or approval has been obtained. It also does not apply to a
claim that a permit, license, or approval has been violated. Nor does this
statute of limitations lengthen an existing shorter time within which review
must be sought pursuant to the judicial review provision in a statute under
which the agency action is taken.
Finally, a number of editorial changes have been made for clarification and consistency.
SEC. 1603. ASSUMPTION OF RESPONSIBILITY FOR CATEGORICAL EXCLUSIONS. [Legislation]
Section 138 of title 23, "Preservation of parklands" would be eliminated and
replaced with a new section that deals with assumption of responsibility for
categorical exclusions. "Preservation of parklands," which was applicable only
to actions by the Federal Highway Administration, would be removed to eliminate
the redundancy of having two statutes that are essentially duplicates of each
other (section 303 of title 49 has slightly differing wording but is
substantively the same). Section 303, which is applicable to the entire
Department of Transportation, including the Federal Highway Administration,
would remain as the only "section 4(f)" reference, as amended by this bill in
For the purposes of the National Environmental Policy Act (NEPA), a
"categorical exclusion" is defined in regulations as "a category of actions
which do not individually or cumulatively have a significant effect on the
human environment..." 40 CFR 1508.4. Most surface transportation projects
qualify as categorical exclusions (e.g., over 91% of Federal highway
construction projects are classified as categorical exclusions). These kinds of
projects present a low risk of harm to the environment. This section would
allow some of the Department's responsibilities relating to these kinds of
projects to be assumed by the State. This would streamline the environmental
review process, thereby expediting project delivery, without any substantial
risk to the environment.
Current regulations identify certain types of actions that may be treated as
categorical exclusions if the Department determines that specific conditions or
criteria are satisfied and that significant environmental effects will not
result. 23 CFR 771.117(d). Subsection (a) would allow States to assume
responsibility for determining whether these types of actions, or other types
of actions designated by the Secretary, may be treated as categorical
Even when an action is classified as a categorical exclusion, environmental
laws other than NEPA might still apply and impose additional requirements on
the Department for review, consultation, and decisionmaking. Subsection (b)
would allow the Secretary to assign the Department's responsibilities (except
responsibilities relating to Federally recognized tribes) under any such law to
the State. Under this subsection, the State would assume full responsibility
for complying with such laws and, consequently, full liability for any failure
to comply. This would include defending any legal challenges arising from the
assigned responsibilities and being liable for any judgment, order, or fees
imposed by a court in connection with legal challenges.
Subsection (c) provides for the execution of a memorandum of understanding
between the Secretary and the State that would set forth the terms and
conditions of an assignment and assumption of responsibility under this
section. Such a memorandum of understanding would need to be renegotiated every
three years. The Secretary would monitor the State's compliance with the
memorandum of understanding, as well as the effectiveness of the delegation,
and, to the extent possible, would use the renegotiation process as a mechanism
to ensure compliance and to correct problems. Under subsection (d), the
Secretary could terminate an assignment of responsibility to a State if it is
not adequately carrying out its responsibilities.
SEC. 1604. SECTION 4(f) POLICY ON LANDS, WILDLIFE AND WATERFOWL REFUGES, AND HISTORIC SITES. [Legislation]
Section 138 of title 23, "Preservation of Parklands," which was applicable
only to actions by the Federal Highway Administration, would be replaced by a
new section 138 that deals with the assumption of responsibility for
categorical exclusions (see section 1603 of this bill). Existing section 138
would be removed to eliminate the redundancy of having two statutes setting
environmental requirements that are essentially duplicates of each other (with
slightly differing wording). The other provision (49 U.S.C. 303), which is
applicable to the entire Department of Transportation, including the Federal
Highway Administration, would remain as the only "section 4(f)" reference.
Former section 4(f) was originally enacted as part of the Department of
Transportation Act of 1966 and is now codified at 49 U.S.C. 303, but is still
commonly referred to as "section 4(f)".
Section 303 of title 49, Policy on lands, wildlife and waterfowl refuges,
and historic sites, would be amended to streamline its use and, where there is
agreement, remove duplication with the process dictated by section 106 of the
National Historic Preservation Act. It would retain the existing statutory
language and would apply it to the same sites now covered, but would add
language to clarify the factors that the Secretary must use in making
determinations under it and improve the "section 4(f)" evaluation process. This
would not limit the protection of "section 4(f)" resources, but it would
facilitate the process by taking into consideration court decisions affecting
the applicability of "section 4(f)" and codifying those factors that would more
efficiently allow a prudent decision.
Section 4(f) was enacted in 1966 during the peak of the Interstate highway
construction program. Many interstate highways threatened major urban parks and
historic districts. Much of the case law on "section 4(f)" was decided on cases
involving these major new highways. This prompted some strict interpretations
of "section 4(f)," beginning with the Supreme Court's seminal decision in
Overton Park v. Volpe, 401 U.S. 402 (1971). In Overton Park, the
Supreme Court set a high bar for rejecting an avoidance alternative, stating in
dicta that an avoidance alternative must always be selected unless there are
"unique problems or unusual features associated with it, or that the cost,
social, economical, or environmental impacts, or the community disruption
resulting from such alternatives reach extraordinary magnitudes."
Today's highway program is oriented much more toward system preservation and
modernization, in which existing facilities are the focus. The rigid rules for
applying "section 4(f)" spawned from the early court decisions are often an
awkward fit for the majority of situations faced today, where consequences to
"section 4(f)" properties are usually not as extreme. In response, some later
court decisions injected greater flexibility in interpreting "section 4(f)" and
the Supreme Court's decision in Overton Park. For example, in Eagle
Foundation v. Dole, 813 F.2d 798 (7th Cir. 1987), the Court of
Appeals for the Seventh Circuit sanctioned a balancing approach to determine
whether an alternative was prudent and feasible, even though quoting from the
Supreme Court's decision in Overton Park. In Eagle Foundation,
the plaintiffs challenged the routing of a segment of highway through a
wildlife reserve and a historic farm. The Seventh Circuit held that, in
determining what is prudent, the Secretary's "inquiry calls for judgment,
balancing, and for the practical settlements of disputes on which reasonable
people will disagree," and that a "prudent judgment is one that takes into
account everything important that matters." The Court noted that the Supreme
Court's use of the term "unique" was merely for emphasis, and was not intended
to replace "prudent." The Court further concluded that the harm caused by an
alternative could be aggregated in determining whether it is prudent: "It would
be prudent to build around the park if the Secretary were convinced that the
aggregate injuries caused by doing so exceeded those caused by reducing the
size of the park." The Court agreed with the Secretary that the aggregate costs
of the alternatives-including safety concerns, endangerment of eagle roosting
sites, and an additional cost of at least $8 million-were sufficient reason to
find them imprudent.
The Court of Appeals for the Fourth Circuit made a similar analysis in
Hickory Neighborhood Defense League v. Skinner, 910 F.2d 159
(4th Cir. 1990), a case in which plaintiffs challenged a
highway-widening project in North Carolina. Following the Seventh Circuit's
reasoning in Eagle Foundation, the Fourth Circuit agreed that the
Secretary must show a compelling reason for rejecting an avoidance alternative,
but that an express finding of a "unique" problem was not necessary. The Fourth
Circuit also agreed that it was appropriate to consider aggregate impacts in
determining whether or not an alternative was prudent, and upheld the
Secretary's decision that the cumulative adverse impacts of the
alternatives-i.e., impeding access to two hospitals, routing through a quiet
residential neighborhood, traffic operational difficulties due to sharp turns
and inadequate cross-walks-made it imprudent.
However, other courts continue to strictly construe "section 4(f),"
requiring an express demonstration of "unique problems" or "unusual factors"
before an alternative can be found imprudent. For example, in Louisiana
Environmental Society v. Coleman, 537 F.2d 79 (5th Cir. 1976),
the Fifth Circuit made clear that the use of a park did not have to be
substantial for "section 4(f)" to apply: "Any park use, regardless of its
degree, invokes Section 4(f)." The Court went on to suggest that a delay of ten
years in the construction of the highway and displacement of up to 1500 persons
would not be a sufficient reason to find an alternative imprudent. The Court of
Appeals for the Eleventh Circuit followed a similar line of reasoning in
Druid Hills Civic Association v. FHWA, 772 F.2d 700 (11th
Cir. 1985), emphasizing that an alternative that minimized harm to a park must
be selected unless there are truly unusual reasons for rejecting it as
imprudent. In Stop H-3 Association v. Brinegar, 740 F.2d 1442
(9th Cir. 1984), the Ninth Circuit also emphasized the need for the
Secretary to demonstrate "truly unusual factors" or "costs or community
disruption [reaching] extraordinary magnitude" before rejecting an alternative
as "imprudent." The Court found that three of the reasons upon which the
Secretary rejected an avoidance alternative-a significant number of
displacements, including the dislocation of 31 residences, three businesses and
a church; increased noise, air quality and visual impacts to residents; and an
additional cost of $42 million-were insufficient to support the Secretary's
decision. The Court found the fourth reason, "safety considerations," to be
more compelling, but in the end also concluded that the record was inadequate
to show that the adverse safety impacts of the avoidance alternative were of
such magnitude as to overcome the paramount importance given to the protection
of parkland in Overton Park.
The disparity in these court decisions has made it difficult to find a
workable national standard to use in reaching determinations of whether an
alternative is prudent and feasible. In order to establish more national
uniformity, and consistent with the changed impacts of the highway program,
this provision would clarifyfactors the Secretary shall consider in making
section 303 determinations.
In particular, subsection (c) would explicitly extend the definition of
"prudence" to include weighing the relative values of the nature of the
proposed use with the significance of the resource, the views of the official
with jurisdiction, the severity of impacts, and opportunities for mitigation,
taking into account any anticipated impacts on other resources. This change
would be consistent with more recent court decisions such as Eagle
Foundation and Hickory Neighborhood, which have adopted a
"balancing" approach to determining whether an alternative is "prudent." In
making these decisions, the Secretary shall consider the views of the officials
with jurisdiction over the land. For Federal lands on which the Secretary of
Transportation approves a transportation program or project under section 303,
direction in the applicable land management plan would be considered in the
Secretary's determination of prudence and during project coordination. Land
management plans include, for example, Land and Resource Management Plans under
the Forest and Rangeland Renewable Resources Planning Act of 1974, 16 U.S.C.
528-531, National Park Management Plans under section 1a-7(b) of title 16,
U.S.C., and Bureau of Land Management land use plans under section 1712 of
title 43, U.S.C.
Subsection (d) of this section sets out those cases where "section 4(f)"
would not be applicable (including those previously included in subsection
(c)). This section would accomplish the following goals:
- Add refuge roads to the existing categories of those transportation
improvements that are exempt from consideration under section 303 as these
projects are usually carried out for the benefit of the refuge;
- Exempt from consideration a highway project on land administered by an
agency of the Federal Government, when the purpose of the project is to serve
or enhance the values for which the land would otherwise be protected under
this section, as jointly determined by the Secretary and the head of the
appropriate Federal land managing agency.
Subsection (e) would use the National Historic Preservation Act consultation
process as the means of complying with section 303 for a historic site (other
than a National Historic Landmark) where it has resulted in an agreement on its
treatment by participating parties.
The amendment would eliminate the duplication of the section 303 and section
106 processes where section 106 has arrived at a negotiated solution. To ensure
appropriate safeguards for historic properties, the Secretary is directed to
develop administrative procedures, in consultation with the Advisory Council on
Historic Preservation, to ensure that the section 106 process as applied to
transportation projects is conducted in a manner consistent with the goals and
objectives of the National Historic Preservation Act (16 U.S.C. 470f). These
procedures will provide for programmatic oversight of actions taken under
proposed subsection (e) and, under appropriate circumstances, will provide for
a process by which to reconsider the agreed-upon treatment of an historic
property when a key participant has raised a concern regarding the integrity of
the section 106 process with respect to such actions with the Department of
A new subsection would be added to allow Federal-aid highway funds available
under chapter 1 of title 23, U.S.C., to be used to pay for resources, including
staff and administrative expenses, for State historic preservation offices,
Tribal historic preservation offices, or the Advisory Council on Historic
Preservation, to be used to expedite the historic review and consultation
process for Federally funded highway projects.
The above amendments would provide protection for the resources to which
section 303 is considered applicable, while introducing greater procedural
SEC. 1605. NATIONAL SCENIC BYWAYS PROGRAM. [Legislation]
Subsections (a) and (b) of section 162 would be amended to recognize that
the Secretary already is promoting the collection of National Scenic Byways and
All-American Roads as "America's Byways." "America's Byways" was identified as
the marketing umbrella for promotion based on market research completed by FHWA
in consultation with State and byway representatives. The intent is to continue
the two types of designations and use "America's Byways" as the marketing
umbrella for the collection. If State and byway representatives reach consensus
on establishing a single designation category, then these amendments would
provide the Secretary with the authority to use any of the three terms -
National Scenic Byways, All-American Roads, or America's Byways - as the single
Subsection (c)(4) would be amended to delete "passing lane." This would make
adding passing lanes to designated scenic byways no longer eligible for scenic
byways funding under this subsection. Passing lanes are eligible for funding
under other Federal-aid highway programs, such as the Surface Transportation
Program and the National Highway System. The primary purpose of the National
Scenic Byways Program is to increase travelers' awareness and appreciation of
the qualities associated with a byway's designation, as well as promote
preservation, economic development, and tourism.
A new subsection (d) would be added that would authorize the Secretary to
form public-private partnerships to carry out research, technical assistance,
marketing, and promotion with respect to State scenic byways, National Scenic
Byways, All-American Roads, or America's Byways. The National Scenic Byways and
All-American Roads currently are promoted collectively as America's Byways.
This subsection would make the Center for National Scenic Byways in Duluth,
Minnesota, eligible for funding under the National Scenic Byways program. The
Center was established in 1998 to provide technical communications and network
support for nationally designated scenic byway routes.
Subsection (g) (former subsection (f)) allows the Federal share to be up to
100 percent for projects or activities for research, technical assistance,
marketing, and promotion associated with byways.
SEC. 1606. RECREATIONAL TRAILS PROGRAM. [Legislation]
Subsection (a) amends 23 U.S.C. 104(h), the Recreational Trails Program
(RTP) apportionments, to clarify how the Department may use RTP administrative
funds. It specifically allows training. It deletes reference to the National
Recreational Trails Advisory Committee, which officially terminated on
September 30, 2000.
Subsection (b) amends the RTP to improve program delivery. Subsection (b)(1)
amends the State Recreational Trails Committee requirement to strengthen the
role of the committee and to assure enhanced representation and public
participation. This change is proposed because a few States have token
committees. This proposal expands the RTP's concept of 30-percent minimum
motorized and nonmotorized funding to the committee membership, clarifies the
meaning of "once per fiscal year," and establishes a more formal role for the
committees. This will improve the public involvement process for the RTP.
Subsection (b)(2) amends section 206(d)(2) of title 23 concerning the
permissible uses of funds apportioned to States for the RTP. Eligible
categories are added to permit trail assessment for accessibility and
maintenance, and to hire trail crews or youth conservation or service corps to
perform recreational trails activities. These amendments clarify existing
practice in several States, and promote enhanced accessibility for all trail
users, especially for people who have disabilities. Also added are activities
eligible for RTP educational funds: non-law enforcement trail safety and trail
use monitoring patrols, and trail related training. A Bureau of Land Management
survey found there is an expanding need for trail training among Federal,
State, local, and private trail managers, workers, and volunteers. Expanding
training will help improve trail safety and environmental protection. However,
the RTP is not intended to support routine law enforcement.
Subsection (b)(3) eliminates the authority of a State recreational trail
advisory committee to waive the requirement that 30 percent of a State's
apportionment for a fiscal year be used for uses relating to motorized
recreation and another 30 percent be used for uses relating to nonmotorized
recreation. Because this provision applies to apportionments, not obligations,
States retain the flexibility to carry over funds for projects in future fiscal
years. This subsection is replaced by a provision to strengthen the RTP's
connection with youth conservation and service corps, as first proposed in
section 1112(e) of TEA-21. This subsection would direct the States to spend not
less than 10 percent of their RTP funds for grants, cooperative agreements, or
contracts with qualified youth conservation or service corps to perform
recreational trails program activities. The qualifications for youth
conservation and service corps are found in 42 U.S.C. 12572 and 12656. This
subsection does not conflict with the 30-30-40 shares for motorized,
nonmotorized, and diverse trail use; it is intended to be met simultaneously
with the 30-30-40 requirements. This provision would benefit low income,
minority, and at-risk youth by providing enhanced employment opportunities
through youth corps programs.
Subsection (b)(5) simplifies the determination of Federal share for RTP
projects by changing the RTP's normal Federal share from a strict 80 percent to
the sliding scale share used in the Federal-aid highway program. This will
especially benefit States with large amounts of Federal lands. The RTP will
continue to allow Federal agency project sponsors to provide additional Federal
funds, and will continue to allow funds from other Federal programs to be used
as matching funds. The RTP's current legislation allows any other Federal funds
to be used to match RTP funds. However, the reverse is not true: the RTP does
not have specific authority to allow RTP funds to be used to match other
Federal program funds, such as allowing RTP funds to match transportation
enhancement or scenic byways funds. Subsections (b)(7)(D) through (F) make
conforming amendments, and insert language to allow RTP funds to be used to
match other Federal funds, based on existing language from section 206(f)(3) of
Subsection (b)(6) allows pre-approval planning and environmental compliance
costs to be credited toward the non-Federal share for RTP projects, limited to
costs incurred less than 18 months prior to project approval. Many States
require RTP sponsors to complete their environmental compliance documentation
prior to applying for RTP funds. Many RTP sponsors have found these costs to be
very high compared to the amount of funds received under the RTP, sometimes
more than half the total cost. Because RTP sponsors must complete compliance
documentation prior to project approval, they are not eligible costs. This
amendment will provide some relief to project sponsors and allow pre-approval
costs to be counted toward the non-Federal share. In some cases, this may
satisfy the entire non-Federal share. The costs are limited to costs incurred
within the previous 18 months to assure that the planning and environmental
documentation work is in fact related to the current project, and to assure
that the documentation is up-to-date.
Subsection (b)(7) relieves the RTP of several requirements, which, while
appropriate for large highway projects, are excessively burdensome for small
trail projects. State trail administrators requested an exemption, and the
Department agrees they are excessively burdensome for this program. At present,
the RTP is exempted from "section 4(f)" requirements (codified at 23 U.S.C. 138
and 49 U.S.C. 303), because RTP projects are intended to enhance recreational
opportunities, and should be expected to take place on park and recreation
The RTP is administered by a State resource agency in almost all States. The
total RTP funding in each State averages only $1 million per year, which is
smaller than many individual highway projects. Most States select RTP projects
from among competitive proposals on an annual basis. Most States are funding 10
to 20 RTP projects per year. Therefore, RTP projects are much smaller than
highway projects, and should not be treated as if they were highway projects.
They also have a much shorter timeframe than highway projects from project
concept to implementation. Subsection (b)(9) proposes exemptions for:
- Sections 112, 113, and 114 of title 23 deal with highway contracting
requirements and requirements for Federal-aid highways, which create a conflict
for many State RTP programs. Many RTP projects are awarded based on project
merit to particular trail organizations or to local governments, where the work
force is intended to be local government workers and even volunteers. The
highway contracting requirements are unworkable for most RTP projects.
- Section 116 is intended to ensure maintenance of the Federal-aid highway
system by State DOTs, and should not apply to recreational trails administered
through State resource agencies.
- Sections 134 and 135 of title 23 deal with metropolitan and statewide
transportation planning requirements. No State has found any significant value
added by including RTP projects in statewide or metropolitan transportation
improvement programs (STIPs or TIPs). Instead, there is an excessive burden on
the State resource agencies, the State DOTs, and the MPOs by requiring small
value RTP projects to be included in much larger scale transportation plans and
TIPs. RTP projects usually are selected by State resource agencies on an annual
basis, requiring MPOs and States to amend their TIPs.
- Section 217 of title 23 is specific to nonmotorized bicycle transportation
and pedestrian walkways. Section 217 has some requirements and restrictions,
which are incompatible with the RTP. The RTP is intended to benefit both
motorized and nonmotorized recreational trail users; section 217 has
transportation purpose and motorized restriction sections.
- Section 301 of title 23 deals with highway tolls. RTP projects are not
highway projects. Many States and localities depend on trail user fees to
maintain trails. RTP funds may be used for trails on private property where
user fees are needed for ongoing maintenance and operation.
SEC. 1607. EXEMPTION OF THE INTERSTATE SYSTEM. [Legislation]
This section would establish an exemption from consideration under both the
section 303 and section 106 processes for the Interstate Highway System as an
historic resource. If it were designated as an historic property, it is
conceivable that every action taken to maintain, improve, or upgrade the
Interstate System could be considered an undertaking subject to review under
section 303 and section 106 of the National Historic Preservation Act. As such,
compliance with these statutes could unnecessarily burden the States and
Divisions as they work to implement sorely needed improvements. Actions that
could affect properties other than the Interstate System would still need to
comply with the respective processes as usual.
SEC. 1608. MODIFICATIONS TO NHS/STP FOR INVASIVE SPECIES, WETLANDS,
BROWNFIELDS, AND ENVIRONMENTAL RESTORATION. [Legislation]
Proposed Changes to section 103(b)(6) of title 23, U.S.C., Eligible
Projects for the National Highway System
Two modifications of the existing statutory language are proposed. First,
this provision would make two technical corrections to the existing language so
that the eligibility provision refers to the latest Water Resources Act
amendments enacted by Congress. Second, the proposal would insert new language
to clarify the responsibility of the State in using this eligibility provision
for mitigation banks. The proposal would revise the language in the eligibility
provisions to indicate that the State department of transportation (and FHWA
through approval processes) has sole discretion regarding the practicability of
banking to establish the eligibility of a project's wetland or natural habitat
mitigation costs for Federal-aid funding.
This provision would also establish eligibility for pollution abatement and
environmental restoration projects under the National Highway System (NHS).
Current authority under TEA-21 provides this eligibility only to projects under
the Surface Transportation Program (STP), and this would establish an identical
provision as in the STP for eligible projects. The measures must mitigate
impacts caused by a project funded under title 23, but they need not be
proposed as part of another project. If the measures are part of a project to
reconstruct, rehabilitate, resurface, or restore an NHS facility, then the
pollution abatement and environmental restoration work must not exceed 20% of
the total project cost.
This provision would establish NHS eligibility of Federal-aid funds for
invasive species control efforts related to projects funded under title 23.
Participation in statewide inventories is an included eligible item.
Contributions to measures to control exotic and invasive plant species, which
are increasing in the United States, may precede project construction if such
measures are consistent with Federal law and State transportation planning
This provision would establish NHS eligibility of Federal-aid funds for
remediation activities associated with the construction of a project funded
under this title on a brownfields site.
Proposed Changes to section 133 of title 23, U.S.C., Surface
Two modifications of the existing language are proposed. First, this
provision would make two technical corrections to the existing language so that
the eligibility provision refers to the latest Water Resources Act amendments
enacted by Congress. Second, the proposal would insert new language to clarify
the responsibility of the State in using this eligibility provision for
The proposal would revise the language in the eligibility provisions to
indicate that the State DOT (and FHWA through approval processes) has sole
discretion regarding the practicability of banking to establish the eligibility
of a project's wetland or natural habitat mitigation costs for Federal-aid
This provision would also modify existing eligibility for pollution
abatement and environmental restoration projects under the STP. It would extend
eligibility to any STP project, beyond the current eligibility for only
projects undergoing reconstruction, rehabilitation, resurfacing, or restoration
(4R projects). The measures must mitigate impacts caused by a project funded
under title 23, but they need not be proposed as part of another project. If
the measures are proposed as part of a project to reconstruct, rehabilitate,
resurface, or restore an STP facility, then the current limitation of pollution
abatement and environmental restoration work not exceeding 20% of the total
project cost would remain in place.
This provision would establish STP eligibility of Federal-aid funds for
invasive species control efforts related to projects funded under title 23.
Participation in statewide inventories is an included eligible item.
Contributions to measures to control exotic and invasive plant species, which
are increasing in the United States, may precede project construction if such
measures are consistent with Federal law and State transportation planning
This provision would establish NHS eligibility of Federal-aid funds for
remediation activities associated with the construction of a project funded
under this title on a brownfields site.
SEC. 1609. STANDARDS. [Legislation]
This section would amend 23 U.S.C. 109, Standards. The changes to section
109 are made to provide greater emphasis on and clarity to the need to consider
the preservation of human and natural resources as a part of the decisionmaking
process in developing highway projects. The impacts of highway projects have
been effectively addressed a part of the design process for many years.
However, the transportation community, the traveling public, and communities
have been demanding improvements in project delivery and in the make-up of the
product that is delivered. Compatibility with the surrounding context, or
environment, and improved safety for the motorist and the pedestrian are
critical. The changes to this section address the need to see that highway
projects meet all of these goals by having a project sponsor consider community
preservation and community concerns. Projects that have considered these
context-focused elements have had a much greater success rate at moving
projects to completion, thereby streamlining the delivery process.
Subsection (a) of section 109 would be amended to add a third item
specifying that the Secretary shall ensure that the plans and specifications
for proposed highway projects have considered preservation, historic, scenic,
natural environment, and community values. States can use existing processes
for demonstrating that they have considered the subject factors.
Subsection (p) of section 109 currently allows the Secretary to approve a
project that might not meet all the requirements of subsections (b) and (c)
related to geometric and construction standards, so long as the project meets
certain specified objectives relating to scenic and historic values. This
subsection has been revised to affirmatively encourage the incorporation of
these objectives into the design of all Federally funded projects. Further,
these objectives would be broadened by adding additional objectives consistent
with the philosophy of Context Sensitive Design and subsection (p) would be
renamed Context Sensitive Design. Specifically, the term "community" would be
added to the list of values in subsection (p)(1). This will help make the
subsection consistent with the modifications to other portions of section 109.
In addition, a new item would be inserted as a subsection (p)(1)(C) to add
consideration of locality context. It is added to reflect further the
consideration of context and is consistent with language on locality in
SEC. 1610. USE OF HIGH-OCCUPANCY VEHICLE (HOV) LANES. [Legislation]
This section would amend section 102(a) of title 23, U.S.C., to clarify
existing law and provide more flexibility to State and local agencies for
effective management of HOV facilities. The proposed addition of "other
responsible local agencies" in subsection (a)(1) is an editorial change to
clarify that the provisions pertain to State departments of transportation and
other local agencies that may be responsible for the implementation,
management, operation, and maintenance of HOV lanes. This change is consistent
with how State departments of transportation and local agencies are referred to
in the FHWA Program Guidance on HOV lanes issued on March 28, 2001.
The proposed removal of motorcycles and bicycles in subsection (a)(1) would
clarify the current language and improve safety. Section 163 of the Surface
Transportation Assistance Act of 1982 does not contain any reference to
bicycles and pertains entirely to motorcycles. The presence of bicycles on all
freeway and most surface street HOV facilities would create potential
operational and safety hazards. Subsection (a)(2)(C) proposes to provide
agencies the option of allowing bicycles on surface street HOV facilities when
there is insufficient space within the roadway or public right-of-way to
establish and designate a bicycle-only lane.
Subsection (a)(2) would be added to clearly identify the types of vehicles
that are exempt from meeting the minimum occupancy requirements for HOV
facilities. This provision would also identify the possible options that
responsible agencies may select from and use as operational strategies to
maximize the use of existing and planned future HOV facilities and highway
capacity, mitigate congestion, and reduce fuel consumption. Subsection
(a)(2)(A) would provide that motorcycles shall not be considered
single-occupant vehicles and shall be allowed to use HOV facilities, consistent
with the provisions of section 163 of the Surface Transportation Assistance Act
Existing subsection (a)(2), which allows States to permit a vehicle with
fewer than two occupants to operate on HOV lanes if the vehicle is certified as
an inherently low-emission vehicle (ILEV), would be deleted. Under the current
statute, ILEVs are the only types of low-emission and energy-efficient vehicles
that States may permit to use HOV facilities if they do not meet the required
minimum occupancy requirement. EPA no longer supports programs that focus on
providing incentives to individuals that purchase and use
ILEVs, and in any event, this provision will expire on
September 30, 2003. However, proposed subsection (a)(2)(B) discussed below
would still provide responsible agencies the option of allowing low-emission
and fuel-efficient vehicles (which would include ILEVs) to use HOV facilities,
under the conditions specified in section (a)(2)(B)(i).
Subsection (a)(2)(B) would be added to provide responsible agencies with the
option of allowing low-emission and fuel-efficient vehicles to use HOV
facilities even if they do not meet the minimum occupancy requirements. This
paragraph also identifies the types of vehicles that State transportation
departments may elect to allow on HOV facilities along with the associated
provisions that must be followed to ensure that these vehicles do not seriously
degrade the operation of an HOV facility or system.
Subsection (a)(2)(B)(i) would define a "low-emission and energy-efficient"
vehicle as one that can both meet EPA's Tier II standards for light-duty
vehicles and that has an EPA fuel efficiency rating of 45 miles per gallon or
higher on the highway.
Subsection (a)(2)(B)(ii) would require the responsible agencies that allow
low-emission and energy-efficient vehicles to use HOV facilities to create a
program that defines how such qualifying vehicles are selected and certified.
The creation of such a program is critical to ensuring that there are
requirements for properly labeling these vehicles and that
there are procedures for enforcing these requirements. It is important to
continuously monitor, evaluate, and report on the performance of these
facilities and establish procedures to limit or restrict the use of such
vehicles, if necessary, to ensure that the performance of individual facilities
or the entire HOV system does not become seriously degraded.
Subsection (a)(2)(D) would be added to provide responsible agencies with the
option of charging vehicles a toll for each use of an HOV facility if these
vehicles do not meet the minimum occupancy requirements, and if the
requirements of section 129 of title 23, U.S.C. are met. This ensures
consistency with the provisions that have been proposed for allowing tolling to
manage congestion and improve air quality in section 129 of title 23, U.S.C.
This subsection also identifies the associated provisions that must be followed
with establishing a program that addresses how vehicles can enroll and
participate, and the other required provisions that must be satisfied. The
creation of such a program is critical to ensure that the vehicles are properly
tolled; fees collected; violations enforced; demand is managed in an efficient
and safe manner; operation of these facilities continuously monitored,
evaluated, and reported; and procedures established that limit or restrict the
use of such vehicles as necessary, to ensure that the performance of individual
facilities or the entire system does not become seriously degraded.
Subsection (a)(2)(E) would be added to allow designated public
transportation vehicles that are deadheading or not currently in service to use
HOV facilities if they do not meet the established occupancy requirement.
Designated public transportation vehicles are defined as those providing
designated public transportation, as defined under section 12141 of title 42,
and that are owned or operated by a public entity or that are operating under
contract to a public entity. This definition would prohibit privately owned
vehicles, public school transportation vehicles, nonprofit organizations,
taxicabs, or other similar types of services from using HOV facilities without
the requisite number of passengers. This provision would also establish the
conditions that must be met to use HOV facilities when the designated public
transportation vehicle does not meet the occupancy requirements. These
conditionsinclude requiring and enforcing the labeling of vehicles,
continuously monitoring, evaluating, and reporting on performance, and
establishing the policies and procedures that would limit or restrict the use
of such vehicles as necessary, to ensure that the performance of individual HOV
facilities or the entire system does not become seriously degraded.
Subsection (a)(3) would be added to identify the requirements a
responsible agency must follow when it permits any of the exceptions specified
in subsection (a)(2). Subsection (a)(3)(A) would requires the responsible
agency to establish, manage, and support a performance monitoring, evaluation,
and reporting program if it permits any of the exceptions specified subsection
(a)(2). The program would be required to continuously monitor, assess, and
report on the impacts that any of these excepted vehicles may have on the
operation of individual HOV facilities and the entire HOV system. The FHWA
Program Guidance on HOV lanes would be revised to provide guidance on how the
responsible local agencies should work with the FHWA Division Offices to
monitor, evaluate, report, and make changes based on the performance of
specific HOV facilities and the entire HOV system.
Subsection (a)(3)(B) would require responsible agencies to limit or
discontinue permitting any of the exceptions specified in subsection (a)(2), if
the presence of any of these excepted vehicles seriously degrades the operation
of individual HOV facilities or the entire HOV system. For purposes of this
section, "seriously degraded" would mean that an HOV facility located on a
freeway, or similar type of roadway, fails to maintain a minimum average
operating speed of at least 45 miles per hour 90 percent of the time over a
consecutive six-month period during weekday peak travel periods. For HOV
facilities on other types of roadways, the minimum average operating speed,
performance threshold, and associated time periods would be established based
on the conditions unique to each roadway and agreed to by the responsible
The proposed restriction in subsection (a)(3)(B) is necessary to ensure
that, if any of the excepted vehicles becomes a sufficiently popular consumer
choice to fill the available HOV facility capacity, the responsible agency
would be required to discontinue such exceptions to preserve the travel time
savings and travel time reliability that HOV facilities must deliver to be
viable, continue to encourage ridesharing, and support the efficient operation
of transit vehicles.
The FHWA Program Guidance on HOV lanes will be revised to provide guidance
and additional information on the how the responsible local agencies will be
required to work with the FHWA Division Offices to monitor, evaluate, report,
and make changes based on the actual performance of both specific HOV
facilities and the entire HOV system. The Program Guidance will also be revised
to define freeway as a facility that provides full access control, provides for
high levels of safety, and efficiently moves large volumes of traffic at high
SEC. 1611. BICYCLE TRANSPORTATION AND PEDESTRIAN WALKWAYS. [Legislation]
Subsection (a) of this section would make minor amendments in 23 U.S.C.
- The amendment to subsection (a) of section 217 would explicitly allow STP
and CMAQ funds to be used for nonconstruction pedestrian safety programs.
Current law only mentions bicycle safety.
- The amendment to subsection (e) would explicitly mention pedestrian use on
bridges. Current law only mentions bicycle use.
- The amendment to subsection (f) would clean up existing language and remove
the term "highway project" from this section. This language has been a problem
because a highway project is not defined in the law, and defining it would not
accomplish the intent of this clause, which is to make bicycle and pedestrian
projects subject to the same Federal/non-Federal matching shares as other
- The new subsection (k) would explicitly allow an ongoing practice of
charging user fees for shared-use paths. The user fees would have to be used
for the maintenance and operation of shared use paths within the State. This
new subsection would restrict the fee to shared-use paths not within a highway
right-of-way, and would not extend to sidewalks or bicycle lanes.
New subsection (l) would reauthorize the national bicycle and pedestrian
clearinghouse first authorized in section 1212(i) of TEA-21, and provide
funding and contract authority for fiscal years 2004 through 2009.
Subsection (b) of this section would provide that the bicycle and pedestrian
safety grants are to be funded by a set-aside from the Surface Transportation
SEC. 1612. TRANSPORTATION, ENERGY, AND ENVIRONMENT. [Legislation]
This section creates an energy and climate change program at DOT to study
the relationships between transportation, energy, and climate change, and
provides dedicated funding for these activities. While limited research on
these topics is currently being undertaken within some operating
administrations, there are inadequate resources to implement a thorough program
in this area. This proposal would provide funding of $19 million over a
six-year authorization period. Further, because energy and climate change
issues relate to multiple modes of transportation, the proposed legislation
provides a mechanism for coordinated research across operating
The activities conducted under this program would enable DOT to participate
constructively in national efforts to ensure energy security and reduce
greenhouse gas emissions. Specific program activities would be selected by an
internal steering committee with representatives from DOT operating
administrations to ensure a comprehensive, multi-modal focus and avoid
fractionalization. Research would be conducted on transportation strategies to
improve energy efficiency and reduce greenhouse gas emissions from
transportation sources. Research would also be conducted to assess the impacts
of climate change on transportation infrastructure, safety, and operations, and
on strategies to avoid or mitigate these risks through appropriate
transportation planning, investment, and management. Subsection (d) allows DOT
research to be conducted in collaboration with that of other Federal agencies
and other research programs to encourage effective coordination with related
research activities on energy and climate change.
SEC. 1613. IDLING REDUCTION FACILITIES IN INTERSTATE RIGHTS-OF-WAY. [Legislation]
This section would create an exception to the prohibition on the placement
of commercial establishments in rest and recreation areas, and in safety rest
areas, constructed or located on rights-of-way of the Interstate System. The
purpose of this exception would be to allow States (either directly or through
contracts) to place electrification or other idling reductions facilities in
rest areas that could be used to provide heating, air conditioning,
electricity, and communication to motor vehicles used for commercial purposes.
Through these facilities, operators of such motor vehicles would be able to
receive these services without turning on their engines, thereby reducing
vehicle emissions. States, other public agencies, and private entities that are
already allowed to operate on the Interstate System, would be allowed to charge
for the services provided under this authority.
SEC. 1614. APPROPRIATION FOR TRANSPORTATION PURPOSES OF LANDS OR INTEREST IN LANDS OWNED BY THE UNITED STATES. [Legislation]
This proposed change would amend and clarify the process by which the
Federal Highway Administration (FHWA) acquires right-of-way over Federal lands
on behalf of State transportation departments, under 23 U.S.C. 317.
Proposed section 317(a) updates several aspects of the current law. First,
it clarifies that all adverse environmental impacts to the Federal land must be
mitigated. Second, it clarifies that the authority may be used to acquire
Federal land for any project eligible for Federal-aid funding. Third, it
clarifies that if the land is ever not needed for transportation purposes, the
land will revert at the discretion of the prior owning agency, in which case
the land must be restored to its former condition. These clarifications are
consistent with current FHWA transportation policies. This section would retain
the authority of the Secretary of the Federal agency supervising lands proposed
to be appropriated, to certify that the appropriation is contrary to the
purpose for which the lands or materials were reserved.
Proposed section 317(b) adds a new provision clarifying that lands cannot be
forever barred from use for projects eligible under title 23 just because other
Federal funds were spent on their acquisition at some time in the past. If the
land is needed for transportation purposes, and appropriate mitigation and
environmental coordination has taken place, the acquisition and use of
right-of-way needed for the project would be allowed under this provision.
SEC. 1615. TOLL PROGRAMS. [Legislation]
This section establishes and modifies two toll programs. First, this section
amends the Interstate System Rehabilitation and Reconstruction Pilot Program
established under section 1216(b) of TEA-21. These minor modifications are
intended to ease the eligibility criteria for participation in the pilot
program. The strict financial analysis requirement, that the State must show
that collecting tolls is the only way to improve the facility, is replaced by a
requirement that the State must show that financing the improvements to the
facility through tolls is the most efficient, economical, or expeditious way to
advance the project. Most of the original provisions have been retained,
including the number of pilots permitted, the limitation on the use of toll
revenues, and the restriction on the use of Interstate Maintenance funds while
the facility is being tolled.
Second, this section proposes a variable toll pricing program. The purpose
of this program is to enable the use of variable toll pricing on congested
facilities in order to increase mobility and improve air quality. Congestion
continues to be a major concern on our nation's transportation system.
Congestion not only makes our highways inconvenient and less safe, but it also
increases transportation costs for American businesses, and adversely affects
air quality. Under this proposal, the Secretary may permit a State or public
authority to toll any highway, bridge, or tunnel, including facilities on the
Interstate System, to manage existing high levels of congestion or reduce
emissions in a nonattainment area or maintenance area. For each facility for
which a variable toll pricing program is established, the State or public
authority with jurisdiction over the facility, would enter into an agreement
with the Secretary providing for certain conditions, such as variable tolling
by time of day, high occupancy vehicle (HOV) requirements, and certain
toll-revenue use restrictions. Upon the decision of the State or public
authority to discontinue a variable toll pricing program, the tolls would be
removed unless the facility qualifies for tolling under other applicable
authority, such as 23 U.S.C. 129. However, if the facility has any outstanding
debt attributable to the implementation of a variable toll pricing program,
then the State or public authority may continue to toll the facility under the
terms of its agreement until the debt is retired. To be eligible to participate
in this program, the State would provide to the Secretary a description of the
congestion and air quality problems sought to be addressed and the goals sought
to be achieved.
This section would repeal the value pricing pilot program established in
section 1012(b) of the Intermodal Surface Transportation Efficiency Act of
1991, as amended by section 1216(a) of the Transportation Equity Act for the
21st Century. Additionally, this section would permit any State or public
authority currently operating under the authority of a cooperative agreement
under the value pricing pilot program to continue operating under the terms of
that agreement and would make it clear that any State or public authority shall
be allowed to continue tolling under that authority.
SEC. 1616. OZONE STANDARDS, PARTICULATE MATTER STANDARDS, AND REGIONAL HAZE PROGRAM. [Legislation]
This section would revise current air quality requirements found in sections
6101 and 6102 of TEA-21.
Revised section 6101 of TEA-21. Findings and Purpose
The findings in Section 6101 would be updated to reflect activities that
have occurred since 1998. To enable the States and Indian Tribes to coordinate
planning and implementation of the PM-2.5 standards and the regional haze
program, the language in section 6101 is revised to establish a single date for
PM-2.5 designations, which would permit submission of plans for both programs
on the same schedule.
The Environmental Protection Agency (EPA) anticipates having 3 years of
PM-2.5 monitoring data by the end of 2003. Given the health benefits of
reducing PM-2.5, it is important to move forward expeditiously on the
designation process and implementation of the standards. The findings also note
the importance of continued funding for the PM-2.5 monitoring program to
support the overall implementation process.
Revised section 6102. Particulate Matter and Regional Haze
Section 6102 would be amended in order to establish specific dates by which
States must provide recommendations to EPA, and by which EPA must promulgate
designations. By having specific dates, it should streamline the designation
process, facilitate coordination among States, and make it easier for States to
coordinate implementation plans for the PM-2.5 program and for the regional
- The revised language in subsection (c)(1) would call for State
recommendations for PM-2.5 designations to be submitted to EPA by September 30,
2003. This date should give the States time to take the 2000-2002 data into
- The revised language in subsection (c)(2)(A) would require State plans for
regional haze to be submitted within 3 years of the date that PM-2.5 areas are
designated in the State. Thus, statewide regional haze plans and PM-2.5 plans
will be due at the same time, allowing for better coordination of strategies
for each program.
- The revised language in subsection (c)(2)(B) would provide that the
requirements in subsection (c)(2)(A) do not preclude nine Western States from
submitting regional haze plans in 2003 to implement regional haze requirements
based on the 1996 recommendations of the Grand Canyon Visibility Transport
The revised language in subsection (d) would establish a date of December
31, 2004, by which EPA is to promulgate designations for PM-2.5. Current TEA-21
language could otherwise result in some areas being designated in July 2004 and
others in July 2005, making it more difficult for States to coordinate
technical analysis and the implementation of strategies designed to reduce
pollution regionally. Setting this date for designations should facilitate
regional coordination among States and provide for expeditious action toward
attaining the standards.
SEC. 1617. INDEMNIFICATION ON CERTAIN RAILBANKED PROJECTS. [Legislation]
Under a variety of programs (e.g., the Recreational Trails Program, the
Transportation Enhancements Program, the Congestion Mitigation and Air Quality
Improvement Program, Surface Transportation Program), the Department of
Transportation provides funds to States to acquire, develop, construct, and
maintain trails. States may use these funds to make grants to local governments
and private organizations ("project sponsors") for trail projects. Such
projects include trails established pursuant to the National Trails System Act
Amendments of 1983, 16 U.S.C. 1247(d) ("Rails to Trails Act"), located on a
Where the railroad or project sponsor's ownership interest in the
right-of-way would not allow for railbanking and interim trail use under
applicable State law but for the operation of the Rails-to-Trails Act, the
United States has been held liable by the Federal courts under the Fifth
Amendment to pay just compensation. The result in these instances is that the
United States can be said to pay twice for the same trail corridor -- first
through funds provided by DOT, and then a second time as the result of a just
compensation award to property owners who abut the trail corridor and who are
found by the court to hold the underlying fee interest.
This section adds an indemnification requirement for States involved in
railbanking. If a Federal court determines that property owners are entitled to
just compensation in a corridor where Federal-aid highway funds have been used
after the date of enactment to acquire right-of-way interests or develop a
trail that is located on a railroad right-of-way under the Rails to Trails Act,
then the State would have to pay the United States the lesser amount of the
judgment awarded (including attorneys' fees) or the Federal-aid highway program
money received in connection with that railroad right-of-way.
SUBTITLE G - PROGRAM EFFICIENCIES AND IMPROVEMENTS -- OPERATIONS
SEC. 1701. TRANSPORTATION SYSTEMS MANAGEMENT AND OPERATIONS. [Legislation]
This section would amend title 23 so that transportation systems management
and operations (TSM&O) programs and projects are integrated into and
facilitated through the capital planning and construction processes. This
proposal adds both a new section to title 23 and a definition of
"transportation system management and operations" in the general definitions
section. These amendments would establish a specific foundation for TSM&O,
differentiate it from construction provisions in title 23, provide a clearer
mandate, alleviate ambiguities that inhibit deployment and implementation of
TSM&O activities, and establish procurement flexibility that State and
local agencies need to increase their ability to take advantage of advanced
operational practices and advanced technology.
This proposal amends the current definition of "construction." The examples
cited in the current definition of "construction" are driven by traditional
procurement methodologies, such as competitive bidding. Since the enactment of
TEA-21, the transportation industry has indicated that the requirements
surrounding these traditional procurement methodologies are too cumbersome for
operational efforts, such as traffic control systems. The amendment of the
definition of construction, coupled with the new procurement language proposed
in the new section on transportation system management and operations, would
result in greater procurement flexibility. Also, this proposal makes other
technical changes to ensure internal consistency and to make improvements to
transportation system management and operations an eligible activity under the
congestion mitigation and air quality improvement program. Also, regional
transportation operations collaboration and coordination would be added to the
list of eligible activities under the Surface Transportation Program.
A new section 165, entitled Transportation Systems Management and Operation
would be added to title 23 to improve regional transportation systems
management and operation. As envisioned, regional operations collaboration and
coordination is a deliberate, continuous, and sustained activity that takes
place when transportation agency managers and public safety officials
responsible for day-to-day management and operations work together at a
regional level to solve problems, improve system performance, and communicate
better with one another. The result of this activity would be defined to
include, at a minimum, the following: (1) developing a regional concept of
operations that defines a shared strategy for how the region's transportation
systems will be managed, operated, and measured; (2) sharing information among
multiple operators, service providers, and public safety officials as well as
the general public; (3) guiding the implementation of regional transportation
systems management and operations initiatives such as traffic incident
management, emergency management and response, regional traveler information
services and communications networks, roadway weather services, and electronic
payment services. This activity is considered to be essential to the planning
for transportation systems management and operations.
SEC. 1702. REAL-TIME SYSTEM MANAGEMENT INFORMATION PROGRAM. [Legislation]
This section is intended to encourage the deployment of systems to monitor
the status of condition of key surface transportation (highway and transit)
Subsection (a) describes the goals and purposes of the proposed real-time
system management information program. The goal of the program is to provide
the nationwide capability to monitor, in real-time, the traffic and travel
conditions of our Nation's major highways and to widely share that information
to improve the security of the surface transportation system, address
congestion problems, support improved response to weather events, and
facilitate national and regional traveler information. This program would
result in a nationwide system of basic real-time information for managing and
operating our surface transportation system; help identify longer range
real-time highway and transit monitoring needs and develop plans and strategies
for meeting those needs; and provide the capability and means to share that
data with State and local governments, and the traveling public.
Subsection (b) would require the Secretary to establish data exchange
formats within one year of enactment of this bill. Disseminating the data
provided by highway and transit monitoring systems to the public and private
sector is critical to this program. Unless that data is in some sort of
standard format, the benefits of this data would be lost.
Subsection (c) would require each State to establish a statewide incident
reporting system within two years of enactment of this bill. Several of these
systems already exist and they are relatively inexpensive.
Subsection (d) would require State and local governments to explicitly
address real-time highway and transit needs and the systems needed to meet
those needs including coverage, monitoring systems, data fusion and archiving,
and methods of information sharing and exchange within their intelligent
transportation system regional architecture. This subsection would also
encourage States to incorporate explicitly the data exchange formats developed
by the Secretary.
Subsection (e) specifies that activities related to the planning and
deployment of real-time monitoring elements would be eligible for Surface
Transportation Program and National Highway System funds. This subsection also
would allow a State to obligate State Planning and Research funds for
activities related to the planning of real-time monitoring elements.
SEC. 1703. INTELLIGENT TRANSPORTATION SYSTEMS PERFORMANCE INCENTIVE PROGRAM. [Legislation]
This section would establish an intelligent transportation systems (ITS)
performance incentive program, to provide funding to States based on progress
in achieving specific milestones directly related to operational
Subsections (a) through (d) would establish the program, define key terms,
and provide for the goals and purpose of the program.
Subsection (e) would require the Secretary to issue regulations that
establish a funding formula for the program. This subsection would also
establish the criteria upon which the funding formula shall be based. The
Secretary would be required to establish an effective date for the funding
formula in the regulations and to phase in the funding formula over a 3-year
period. The funding formula would be established by regulation in order to
engage the affected parties in the development of that formula.
Subsection (f) would provide contract authority for the program funding.
Additionally, the 80 percent Federal share and its exceptions under section
120(b) of title 23, U.S.C., would apply.
Subsection (g) provides that the funds would be apportioned according to the
National Highway System formula until the fiscal year established by the
Subsection (h) describes the use of the funds received under this program.
The intent is to limit the use of this funding to projects involving planning,
deployment, integration, and operation of ITS systems.
SEC. 1704. COMMERCIAL VEHICLE INFORMATION SYSTEMS AND NETWORKS DEPLOYMENT. [Legislation]
This section is intended to complete the core deployment of Commercial
Vehicle Information Systems and Networks and to encourage the expanded
deployment of Commercial Vehicle Information Systems and Networks by providing
grants to States.
Subsection (a) provides general direction to carry out the Commercial
Vehicle Information Systems and Networks Deployment Program.
Subsection (b) describes the overall purpose of the Commercial Vehicle
Information Systems and Net works Deployment.
Subsection (c) would require the Secretary to make grants of up to $2.5
million for the core deployment of Commercial Vehicle Information Systems and
Networks. A State that has previously received funding for the core deployment
of Commercial Vehicle Information Systems and Networks would receive a grant
that has been reduced by the amount of funds previously received funding for
CVISN core deployment. States that have not previously received funding for
CVISN core deployment would receive a grant of $2.5 million. To be eligible for
a core deployment grant, a State must have a program plan and top-level system
design, must certify that its Commercial Vehicle Information Systems and
Networks activities are consistent with National Intelligent Transportation
Systems and Commercial Vehicle Information Systems and Networks architectures
and available standards, and must agree to execute a successful
interoperability test. The use of grant funds would be limited to core
Subsection (d) would authorize the Secretary to make grants to States for
the expanded deployment of Commercial Vehicle Information Systems and Networks.
The amount of the grants would be determined by the amount of funds that remain
after the core deployment grants have been made and by the number of States
that request an expanded deployment grant. The maximum expanded deployment
grant that may be given to a State in a fiscal year would be $1 million. A
State that has completed core deployment would be eligible for an expanded
Subsection (e) provides that the Federal share of grant funds under this
section would be 50 percent. The Federal share for funds used for Commercial
Vehicle Information Systems and Networks from other eligible sources would be
SUBTITLE H - PROGRAM EFFICIENCIES AND IMPROVEMENTS - FEDERAL-AID STEWARDSHIP
SEC. 1801. SURFACE TRANSPORTATION SYSTEM PERFORMANCE PILOT PROGRAM. [Legislation]
This section would establish a surface transportation system performance
pilot program. This pilot program is intended to test the concept of a
performance-based management approach in the obligation of Federal funding
under the Federal-aid highway program. Under this pilot program, up to five
States would be encouraged to manage their programs on a systematic,
performance basis across the programmatic lines by which the Federal-aid
program is normally structured. This pilot would be devised in order to
determine the feasibility, effectiveness, and impacts of this approach on
program design and management.
One benefit of this program is that it would increase the flexibility
provided to States to obligate their Federal funds made available under certain
specified highway programs in title 23 in accordance with their own needs and
priorities. This program would assist States in making effective investment by
focusing on program outcomes rather than program categories. This program would
facilitate management of the categories to address needs in accordance with
established goals. States could choose under this program to advance individual
projects solely with Federal funds. However, a State would have to agree to
maintain its total (State and Federal) program expenditures at least at the
average level of the three previous fiscal years.
Another benefit of this program is that it would authorize the Secretary to
assign, and a State to assume, some or all of the Secretary's responsibilities
under any Federal law or requirement, except for responsibilities relating to
Federally recognized Tribes. The State would be deemed to be a Federal agency
to the extent the State is carrying out the Secretary's responsibilities under
the National Environmental Policy Act, title 23 of the United States Code, or
any other Federal law. A State department of transportation or other State
agency carrying out a responsibility of the Secretary would be subject to
Federal laws to the same extent a Federal agency would be subject.
Additionally, when assuming the responsibilities of the Secretary, this section
would require a State to certify that it has laws and regulations necessary to
carry out the responsibilities assumed by the State, and laws and regulations
that are comparable to the Freedom of Information Act and that are reviewable
by a court of competent jurisdiction.
From its inception, the Federal-aid highway program has fostered the
development and growth of State transportation departments by requiring them to
have adequate powers and be suitably equipped and organized to be able to
comply with all Federal-aid requirements. In addition, many States have enacted
legislation that is consistent with the requirements contained in title 23.
Thus, in some States, it may be desirable to eliminate Federal controls that
are duplicative to facilitate a more orderly and efficient execution of the
Federal-aid highway program. This program would test whether the State can
deliver these projects, consistent with Federal policies and objectives.
Up to five States could participate in the pilot program. States wishing to
participate in the pilot program would be required to submit an application
that would provide detailed information on their transportation goals and
proposed performance measures to determine progress toward meeting those goals.
This proposed pilot program also would require a State to provide, to the
public, notice and opportunity to comment on the State's participation in the
pilot program at least 20 days prior to submitting its application to the
Secretary. The Secretary would evaluate each submission by determining how well
those goals address national security, interstate commerce, mobility, safety,
and environmental stewardship.
Each year, a State would identify certain goals it wishes to achieve with
its funds under the program as well as certain performance measures by which to
gauge the State's success in achieving its goals. The goals and performance
measures would be mutually established by both the State and the Secretary.
Although this program is intended to provide a great deal of flexibility to the
States in determining where and how it wishes to spend its Federal funds, the
Secretary must be able ensure that the State's goals and priorities are aligned
with any areas of national strategic importance. A State's participation in the
pilot program would be terminated if that State failed to achieve the
established performance for two consecutive years.
Pilot States would be required to submit certain information to enable the
Secretary to judge the success of the pilot program. States would be able to
use their own record-keeping systems with information on the location of the
expenditures, improvement types, and functional systems. This would include how
much progress the State was making in the important national interest areas.
Each year, information concerning how well the States had done to achieve
established targets would be submitted by the pilot States and evaluated by the
Secretary. The overall program would have a limited life and would sunset if
not extended in statute.
Nothing in this section would relieve the Secretary from any of the
Secretary's responsibilities under title VI of the Civil Rights Act of 1964,
the major project requirements under section 106(h) of title 23, the statewide
and metropolitan planning requirements under sections 134 and 135 of title 23,
or the Secretary's rulemaking authority under any Federal law. Nothing in this
section would relieve a project from the requirements of the National
Environmental Policy Act. Additionally, nothing in this section is intended to
relieve the Secretary from any of the Secretary's responsibilities concerning
critical, time-sensitive highway and public transportation security projects
under section 1206 of this Act.
SEC. 1802. STEWARDSHIP AND OVERSIGHT. [Legislation]
This section includes several proposals to improve oversight of Federal-aid
This section includes a provision that would require the Secretary to
establish an oversight program to monitor the effective and efficient use of
funds authorized under title 23, with a specific focus on financial integrity
and project delivery. Under this provision, the Secretary must perform annual
reviews that address elements of States' financial management systems and
project delivery systems. As part of the financial integrity oversight, the
Secretary is required to develop minimum standards for estimating project
costs, and to evaluate periodically States' practices for estimating project
costs, awarding contracts, and reducing project costs. States are required to
determine that subrecipients of Federal funds have sufficient accounting
controls and project delivery systems.
Under current law, projects under title 23 with an estimated total cost of
$1 billion or more are required to submit an annual financial plan to the
Secretary. This section would add a requirement to submit a project management
plan. The project management plan would document the procedures and processes
in place to provide timely information to the project decision makers to
effectively manage the scope, costs, schedules, and quality of the Federal
requirements of the project and the role of the agency leadership and
management team in the delivery of the project.
This section would require a recipient of Federal financial assistance to
prepare an annual financial plan for projects that receive $100,000,000 or more
in Federal financial assistance and that are not subject to the requirements
for major projects. These annual financial plans would be available for the
Secretary's review upon the Secretary's request.
This section would mandate debarment of contractors who have been convicted
of fraud related to Federal-aid highway or transit programs, and mandate the
suspension of contractors who have been indicted for offenses relating to
fraud. This would codify the debarment of convicted contractors, which under
current DOT regulations is a discretionary measure. The Secretary would have
the authority to waive suspension and debarment actions to address
circumstances relating to non-affiliated subsidiaries of an indicted
contractor, and national security concerns.
This proposal would help States and project grantees to fund additional
transportation programs and increase oversight activities. This section would
require that portions of monetary judgments won in Federal criminal and civil
cases against contractors pertaining to Federal-aid highway and transit program
fraud be shared with the State or local transit agency that was injured by the
fraud. The amount of the cost-share would be determined by the Attorney General
and the Secretary, and would be used to fund additional infrastructure and
oversight programs authorized under titles 23 and 49. The funds shared with the
State or local transit agency would be considered as Federal funds. The
mandatory cost-share would not be in effect if the State or local transit
agency was involved or negligent in the fraudulent activity.
This section would also make other conforming and technical amendments to
title 23 for consistency with the oversight responsibilities provided for in
SEC. 1803. EMERGENCY RELIEF. [Legislation]
This section would increase the amount authorized to be obligated in any one
fiscal year for emergency relief under section 125 from $100,000,000 to
$200,000,000. Funding needs are routinely far in excess of the authorized
funding level of $100,000,000. Doubling the authorization level to $200,000,000
would enable emergency relief funding to flow to State and local transportation
agencies much more quickly in keeping with emergency relief needs.
SEC. 1804. FEDERAL LANDS HIGHWAYS PROGRAM. [Legislation]
Subsection (a) would amend 23 U.S.C. 101 to include a new definition for
"recreation roads" and "public forest service roads," and change the
definitions of "Federal lands highways," "forest development roads and trails,"
and "forest road or trail" to reflect current U.S. Forest Service definitions
and a new class of Federal lands highways. It also would delete, as redundant,
one of the two current definitions for "public lands highways" in section 101.
Eligible recreation roads are public roads under the jurisdiction of the Bureau
of Land Management, the Bureau of Reclamation, the Department of Defense, the
Forest Service, or the Army Corps of Engineers, and that are owned by the
Subsection (b) would amend 23 U.S.C. 120(k) and (l) by expanding the ability
of Federal land managing agencies to pay the non-Federal share of any
Federal-aid project funded under 23 U.S.C. 104 to all title 23 Federal-aid
highway programs and the Federal transit program funded under Chapter 53 of
Subsection (c) would amend 23 U.S.C. 132 to allow direct
transfers of apportioned funds to Federal agencies, including the Federal Lands
Highways program, upon State request.
Subsection (d) would amend the Federal Lands Highways program allocation
section, 23 U.S.C. 202, to: (1) eliminate the Public Lands Highways
Discretionary category; (2) retain the forest highway subcategory; (3) revise
the date on which the Indian Reservation Road fund distribution formula
regulation is published, from April 1999 to April 2004, and the year in which
the new formula is implemented, from October 1999 to October 2004; (4) clarify
which title 23 funds (limited to Chapter 2 and emergency relief funds) are
available to Indian tribes under this subsection and what is the relationship
between the FHWA-approved Indian reservation road transportation improvement
program and the obligation of funds for Indian Self-Determination and Education
Assistance Act (Pub. L. 93-638) contracts and agreements; and (5) allow the use
of Indian Reservation Road Bridge funds to be used for design as well as
Subsection (e) would amend the Federal Lands Highways program section, 23
U.S.C. 204, to: (1) allow the Secretaries to enter into agreements as well as
contracts, and (2) expand the use of refuge road funds to be used for
interpretive signage, maintenance of public roads in National Fish hatcheries,
payment of the non-Federal share of Federal-aid highway and transit projects,
and maintenance and improvement of recreational trails. Funding used for trails
would be limited to 5 percent of available funding per fiscal year.
Subsection (f) would create a safety funding category to provided dedicated
funds for transportation safety improvement projects, collection of safety
information, development and operation of safety management systems, highway
safety education programs, and other eligible activities under section 402 of
Subsection (g) would create a recreation roads funding category to provided
dedicated funds for improvement projects for public roads under the
jurisdiction of the Bureau of Land Management, Bureau of Reclamation, Forest
Service, Department of Defense, and Army Corps of Engineers, and that are owned
by the U.S. Government.
Subsection (h) would provide conforming amendments for consistency with the
definition changes made in this section.
SEC. 1805. APPALACHIAN DEVELOPMENT HIGHWAY SYSTEM. [Legislation]
This section prescribes how funds made available for the Appalachian
development highway system would be apportioned to the States in the
Appalachian region. The latest cost estimate would be used as the basis for
apportionments. This section also provides that funding would be available for
obligation for the Appalachian development highway system in the same manner as
other funding apportioned under chapter 1 of title 23, with the exception of
the period of availability. The funding would remain available until expended
and the Federal share would be as delineated in section 201 of the Appalachian
Regional Development Act of 1965. This section would also prohibit the use of
toll credits on the Appalachian development highway system. This would reduce
the Federal cost of that system and would likely expedite its completion.
SEC. 1806. MULTI-STATE CORRIDOR PLANNING PROGRAM. [Legislation]
This section would establish a Multi-State Corridor Planning Program to
replace the National Corridor Planning and Development Program under section
1118 of TEA-21. Changes include: narrowing eligibility; reducing the Highway
Trust fund share and establishing a set of selection criteria. The program
would provide an opportunity for States and regional agencies to jointly plan
for a variety of geographic areas in addition to traditional metropolitan or
State areas. The principal objectives of the program would be to address the
gap created by formula programs (formula programs do not provide specific funds
for multi-State, multimodal, and multi-jurisdictional decisionmaking on
corridors) and to implement the direction by Congress to streamline the project
Eligible activities would be restricted to multi-State planning studies.
This section would clarify that projects must be consistent with the existing
"continuing, cooperative, and comprehensive" planning process required by law
in metropolitan areas and statewide. The section would provide a statutory
emphasis on multi-jurisdictional efforts for multi-modal planning and planning
for operational alternatives that improve mobility, freight productivity,
access to major marine ports, safety, and security.
Some of the selection criteria in section 1118 of TEA-21 required data that
is generally not available and do not relate to the validity of individual
projects. The selection criteria in this proposal are based on criteria from
TEA-21 and on other considerations identified in the process of implementing
The total Federal share payable for a study would be limited to 80 percent,
but the maximum share of funds from the Highway Trust
Fund (other than the Mass Transit Account) for a study could not exceed 50
percent of the total cost of such study. This would
ensure a strong commitment from all parties, leverage additional funds, and
facilitate implementation of multimodal plans.
SEC. 1807. BORDER PLANNING, OPERATIONS, ANDTECHNOLOGY PROGRAM. [Legislation]
This section would establish a Border Planning, Operations, and Technology
Program to replace the Coordinated Border Infrastructure Program under section
1119 of TEA-21. Improvements would include: emphasizing bi-national planning;
modifying existing eligibility for clarity; adding language clarifying when
physical construction in Canada and Mexico is eligible; adding language
clarifying when and in what manner funds authorized for this program may be
transferred to the General Services Administration; and establishing a set of
selection criteria. These improvements to the prior program would enhance
coordination among project stakeholders and enhance opportunities for improving
border area air quality, planning, safety, and security, as well as operations.
An individual project whose scope is limited to information exchange could
receive a maximum of $500,000 in a single year; $47 million would be set aside
in 2004 for construction of State border infrastructure facilities in
Projects would have to be consistent with the existing "continuing,
cooperative, and comprehensive" planning process required in metropolitan areas
by 23 U.S.C. 134 and statewide by 23 U.S.C. 135. Also, this section would
clarify that regionally significant projects must already be included in the
transportation plans and program at the time application is made for a grant
under this section. Priority would be given to activities at the northern or
southern borders of the United States that improve safety, security, freight
movement, operations, or access to rail, marine, or air services.
Selection criteria for this program are based on criteria in TEA-21 and on
other considerations identified in the process of implementing TEA-21.
Multi-jurisdictional organizations with Federal representation have been
established for both the Mexico/US border and the Canada/US border and it would
be appropriate to use the consolidated expertise of these organizations in
Because of the need to place physical facilities in Canada and Mexico to
accommodate trade with the United States, language is included to clarify that
such projects would be eligible. This provision would make clear that the
Secretary may approve a request by one or more States to provide funds for
construction projects in Canada and Mexico where such projects are limited to
the improvement and efficiency of vehicle and cargo movements at international
gateways and ports of entry at land border crossings. Funds for such projects
would be provided to border States, and projects would require the cooperation
of both the border State and Canada or Mexico, or a political subdivision of
Canada or Mexico. Before funding such projects, the Secretary would have to
obtain assurances from Canada, Mexico, or the appropriate political subdivision
responsible for the project, that the project will be maintained and used over
the useful life of the facility only for the purpose for which Federal funds
were allocated to the project.
This section would also require that a portion of the fiscal year 2004
funding for the program be used for the construction of State border safety
infrastructure facilities in Arizona, California, New Mexico, and Texas. This
is the final year of funding in a 3-year effort to improve State border safety
inspection infrastructure at the southern border.
The Department does not propose funding for marine port-related projects
under this program, notwithstanding the fact that such projects may be
important and worthwhile, because this program is designed to address issues at
the land borders with Canada and Mexico.
In addition, this section would provide for transfer of funds allocated for
a specific project or projects to the General Services Administration for
administration, where the Secretary and the State receiving the allocation deem
such transfer necessary or where the Secretary determines that such a transfer
is necessary to effectively carry out the program.
SEC. 1808. TERRITORIAL HIGHWAY PROGRAM AMENDMENTS. [Legislation]
The Territorial Highway Program (THP) was first established by section 112
of the Federal-Aid Highway Act of 1970, Pub. L. 91-605, 84 Stat. 1713, Dec. 31,
1970. Current provisions of law have not been modernized to reflect the
maturity of the program. This provision would update and consolidate as much as
possible in one place (section 215) the statutory provisions in title 23
governing the territorial highway program.
Subsection (a) would add a definition of the program to title 23. The intent
of this amendment is to increase the visibility of the THP by recognizing it
along with other Federal assistance programs that are defined in title 23.
Subsection (b) would maintain the current funding level for the program at
$36,400,000 per fiscal year. Subsection (c) would amend 23 U.S.C. 103 to: (1)
refer to section 215, which contains a comprehensive listing of all permissible
uses of funds apportioned for the territorial highway program, including
projects eligible for assistance under 23 U.S.C. 133; and (2) eliminate the use
of funds apportioned for the National Highway System for airports and
Historically, funding for the THP was set at 1% of the Federal-aid Primary
program and, under ISTEA, 1% of the NHS program. However, under TEA-21, the
funding was fixed at the current level, which is significantly lower than the
levels that would have been available under the 1% formula. As a consequence,
the funding levels for the THP have not kept pace with the rest of the
Federal-aid highway program. The limited funding available for the THP should
be focused on addressing the growing highway needs of the territories.
Subsection (d) would revise 23 U.S.C. 215 to modernize terms to reflect the
current operations and needs of the program. Many of the provisions in section
215 are outdated, do not recognize changes in funding authorization, and do not
reflect the development of the program. The changes to section 215 include:
- expanding the areas of technical assistance to be provided to territorial
governments to include environmental evaluations (an important aspect of
transportation project development);
- requiring a delineation in the agreement between the Secretary and the
territorial government of the kind of technical assistance to be provided;
- requiring that a statement on the role and responsibilities of the
territorial government and the Secretary for oversight be included in the
- requiring the execution of new agreements within 12 months after the
effective date of this bill;
- requiring the re-evaluation of agreements every two years;
- identifying in the agreement the provisions of Chapter 1 of title 23 that
apply to the particular territorial government. In exercising the authority
granted by section 215, the Secretary should recognize that each of the
territories has different levels of transportation technical expertise, forms
of land ownership, governmental structures, taxing authorities, topographic
constraints, levels of traffic congestion, population densities, transportation
needs, and other important characteristics that may warrant different
- eliminating the current prohibition on the imposition of toll charges;
- clarifying the permissible use of funds for ferry boats and related
facilities, subject to the restrictions of sections 129(b) and (c);
- codifying the current funding eligibility of preventative maintenance
activities consistent with the criteria set forth in section 116;
- eliminating existing funding set-asides for certain projects/activities; and
- clarifying that Federal-aid projects may not be undertaken on local roads.
SEC. 1809. FUTURE INTERSTATE SYSTEM ROUTES. [Legislation]
Under current law, the Secretary may designate a highway as a "future
Interstate System route" upon the Secretary's determination that the highway
"would be a logical addition or connection to the Interstate System" and would
qualify as an Interstate System route upon meeting all the standards for
designation as an Interstate System route. The law further requires a written
agreement between the Secretary and the State or States in which the highway is
located that the highway will meet the Interstate System standards within 12
years of the agreement. However, the law requires the Secretary to revoke a
future Interstate System route designation if the State or States in which the
highway is located do not substantially complete construction within the
12-year time limit.
This section would replace the 12-year limit with a 25-year limit to provide
States ample opportunity to substantially complete construction of the highways
designated as future Interstate System routes, before the States must forfeit
future Interstate designation status. This section would also extend the time
limitation contained in existing agreements from 12 years to 25 years.
SEC. 1810. DONATIONS AND CREDITS. [Legislation]
This revision would simplify and broaden 23 U.S.C. 323 by deleting
subsection (e) and adding a reference to local government employees in
subsection (c). This would expand section 323 to include the value of donated
services provided by local government employees, as already allowed for
services donated by a person, to be credited to the non-Federal share for
projects funded under title 23 funds. This provision would give States and
local governments additional flexibility to match Federal funds and expedite
SEC. 1811. DISADVANTAGED BUSINESS ENTERPRISES [Legislation]
This section continues authorization of the Disadvantaged Business
Enterprise (DBE) Program. Under the DBE program, not less than 10 per cent of
the funds provided to FHWA, FTA, and Transportation Research pursuant to titles
I, III, and V shall be expended with small business concerns owned and
controlled by socially and economically disadvantaged individuals, except to
the extent the Secretary of Transportation determines otherwise.
The proposed section restates the current authorization, with one exception.
The provision of current law requiring a review of the program by the
Comptroller General of the United States has been eliminated. The Comptroller
General completed the required review in June 2001.
This proposal is made in recognition of the fact that two cases addressing
this provision are currently pending in the Federal courts of appeals, along
with other cases addressing related issues up to the level of the Supreme
Court. The Department will continue to monitor developments in this area, and
will be prepared to propose appropriate legislative changes or to make any
appropriate adjustments in the administration of this program in light of
clarification by the courts of the constitutional parameters for such
SEC. 1812. HIGHWAY BRIDGE PROGRAM. [Legislation]
This section proposes several amendments to section 144 of title 23. First,
the change in the section title removes the emphasis on the bridge program as
being focused on replacement and rehabilitation.
Subsection (a) of section 144 would be amended by deleting the words
"replacement and rehabilitation" and adding the words "improve the condition of
their bridges through replacement, rehabilitation and systematic preventative
maintenance on" after "the Several States to." These changes allow the use of
bridge funds for preventative maintenance activities consistent with the
section 116(d) of the NHS Designation Act.
To clarify that all qualifying bridges are eligible for funding under
section 144, subsection (a) would be further amended by deleting the words "is
significantly important and" after bridge.
Subsection (d) would be amended to allow section 144 funds to be used for
scour countermeasures without regard to eligibility. More bridges fail due to
scour than any other cause.
Subsection (e) of section 144 would be amended by deleting the words
"constructed under subsection (m) in such State, relating to replacement of
destroyed bridges and ferryboat services, and." This provision has been
difficult to track and is no longer needed. To set a date that correlates to
the amendments being proposed to section 144, subsection (e) would be further
amended by replacing 1997 with the year 2003. Also, the obsolete reference to
"the Federal-aid primary system" would be replaced by "Federal-aid
The effectiveness of the discretionary bridge program has diminished over
the years and work under that program is eligible using funding apportioned
under section 144. Apportioning all of the section 144 funds by formula allows
States, in cooperation with local governments, to select the most urgently
needed projects in their respective States. Accordingly, section 144 would be
amended to eliminate the discretionary bridge fund formerly in subsection
New subsection (g), formerly section 144(g)(3), would delete the words "nor
more than 35 percent"; change 1987 to 2004 and change 2003 to 2010 to
correspond to the years funding would be provided under these amendments; add
the words "perform systematic preventative maintenance" after rehabilitate and
delete the word "paint." This would correct an issue when a State has needs for
its off-system bridges greater than 35% of the apportioned funds. Some States
have more off-system bridge needs than on-system. This section would also allow
for bridge funds to be used for preventative maintenance on off-system
The amendment to subsection (n) would clarify that "standards" are general
Subsection (o)(4), Historic Bridge Program, would be amended by adding the
words "200 percent of" after "amount not to exceed," and striking the word
"title," replacing it with "section." This would correct a conflict with the
use of transportation enhancement funds for bridge preservation and increases
the allowable limits under the Highway Bridge Program.
Finally, new subsection (r) would be added to section 144 to preclude
highway bridges from being treated as "water resources projects" under the Wild
and Scenic Rivers Act (16 U.S.C. 1271-1287). The Wild and Scenic Rivers Act
prohibits Federal agencies from funding water resources projects if the
Department of the Interior determines the project would adversely affect a
river listed or proposed for listing on the wild and scenic rivers system. This
section would clarify that a highway bridge constructed with title 23 funds is
not a water resources project under the Wild and Scenic Rivers Act. Highway
bridges are designed to convey floodwaters with minimal disruption and are not
intended to control the free flow of a National Wild and Scenic River.
SEC. 1813. DESIGN-BUILD. [Legislation]
During the rulemaking process for the design-build regulation required by
section 1307 of TEA-21, which also amended 23 U.S.C. 112, FHWA received several
comments regarding the restrictive nature of the "qualified project" definition
with respect to the project cost threshold. Approximately 85% of the
design-build projects that have been evaluated under the FHWA experimental
contracting program (Special Experimental Project No. 14 (SEP-14) - Innovative
Contracting) are too small to meet the definition of "qualified project." Based
on the FHWA's experience with design-build projects under SEP-14, there is no
need to limit design-build projects to those costing more than $5 million in
the case of a project that involves installation of an intelligent
transportation system and to those costing more than $50 million in the case of
any other project.
SEC. 1814. INTERNATIONAL FERRIES. [Legislation]
This section would amend 23 U.S.C. 129, to allow a territory of the United
States to undertake a ferry boat project using Federal funding even though
there may be international waters between the islands comprising the
SEC. 1815. ASSUMPTION OF RESPONSIBILITY FOR TRANSPORTATION ENHANCEMENTS, RECREATIONAL TRAILS, AND TRANSPORTATION AND COMMUNITY AND SYSTEM PRESERVATION PROGRAM PROJECTS. [Legislation]
The transportation enhancements and recreational trails programs,
established under ISTEA and continued under TEA-21, and the transportation and
community and system preservation program, established under TEA-21, will be
continued. Projects under these programs present a low risk of harm to the
environment, and, in fact, are often beneficial. They typically have broad
support from the community as well as transportation stakeholders. However,
these projects are governed by all of the same environmental and other Federal
requirements that apply to all Federal-aid highway projects. This section would
allow some of the Department's responsibilities relating to these types of
projects to be assumed by the State. This would streamline the review and
approval process, thereby expediting project delivery for these
non-controversial projects, without substantial risk of harm to the
environment. This section would add a new section 166 to title 23.
Subsection (a) of section 166 would allow the Secretary to assign to a State
some or all of the Department's responsibilities (except responsibilities
relating to Federally recognized tribes) under Federal law that are applicable
to transportation enhancements, recreational trails, and transportation and
community and system preservation program projects. Under this subsection, the
State would assume full responsibility for complying with such laws and,
consequently, full liability for any failure to comply. This assumption would
include defending any legal challenges arising from the assigned
responsibilities and being liable for any judgment, order, or fees imposed by a
court in connection with such legal challenges. The State would also assent to
the jurisdiction of Federal courts with respect to its assumed
responsibilities. The assignment could be made with respect to responsibilities
for new projects or for unfulfilled responsibilities for projects already
Subsection (b) would provide for the execution of memoranda of understanding
between the Secretary and the State that would set forth the terms and
conditions of an assignment and assumption of responsibility under this
section. Such memoranda of understanding would need to be renegotiated every
three years. The Secretary would be required to conduct compliance reviews to
ensure that a State is complying with the terms and conditions of the
memorandum of understanding and with any laws for which it is assigned
responsibility under the memorandum of understanding. Such compliance reviews
would be conducted on an annual basis for the first three years of the
agreement, and then on a periodic basis to be determined by mutual agreement
between the State and the Secretary, but no less frequently than every three
years. Under subsection (c), the Secretary could terminate any assignment of
responsibility to a State if it is not adequately carrying out its
Subsection (d) would clarify that, with respect to recreational trails, the
assignment of responsibility to a State must be made through the agency or
agencies designated by the Governor to be responsible for administering
apportionments under the recreational trails program. Subsection (e) would
clarify that this section is not intended to limit any requirements under any
applicable laws providing for the consideration and preservation of the public
interest, including public participation and community values in transportation
SEC. 1816. TRANSPORTATION, COMMUNITY, AND SYSTEM PRESERVATION PROGRAM. [Legislation]
TEA-21 authorized a Transportation and Community and System Preservation
pilot program, a comprehensive initiative of research and grants to investigate
the relationships between transportation and community and system preservation
and private sector-based initiatives. This section would add a new section 167
to title 23 to authorize the Transportation, Community, and System Preservation
(TCSP) program. Under the proposed TCSP program, the Secretary would facilitate
the planning, development, and implementation of strategies by States,
Metropolitan Planning Organizations, Federally recognized tribes, and local
governments to integrate transportation, community, and system preservation
plans and practices that improve the efficiency of the transportation system;
reduce the impacts of transportation on the environment; reduce the need for
costly future investments in public infrastructure; provide efficient access to
jobs, services, and centers of trade; and examine development patterns and
identify strategies to encourage private sector development patterns which
achieve these goals.
The proposed program would be funded by a $26,000,000 set-aside from the
Surface Transportation Program. Under TEA-21, the Transportation and Community
and System Preservation pilot program awarded funding to individual projects
undertaken by States, Metropolitan Planning Organizations, and local
governments. The proposed TCSP program would apportion program funding to
States by formula. Each State, the District of Columbia, and Puerto Rico would
receive $500,000 in TCSP funds each fiscal year for fiscal years 2004 through
2009. The proposal also would require States to make these funds available to
Metropolitan Planning Organizations, Federally recognized tribes, and local
governments, in a manner and amount to be determined by the States.
SEC. 1817. PROGRAM EFFICIENCES -- FINANCE. [Legislation]
Section 115 of title 23, Advance construction, would be amended to remove
the restriction that a State must obligate all funds apportioned or allocated
to it under sections 104(b)(2), 104(b)(3), 104(f), 144, or 505 of title 23, or
demonstrate that it will use all obligation authority allocated to it for
Federal-aid highways and highway safety constructions prior to approval of
advance construction projects. The revisions would also clarify that advance
construction procedures can be used for all categories of Federal-aid highway
funds, and that when a project is converted to a regular Federal-aid project,
any available Federal-aid funds may be used to convert the project. This
section would further modify section 115 to remove the requirement that the
Secretary must first approve an application of the State prior to authorizing
the payment of the Federal share of the cost of the project when additional
funds are later apportioned or allocated to the State. The new provision would
allow the Secretary to obligate the Federal share or a portion of the Federal
share of cost of the project by executing a project agreement.
SUBTITLE I - TECHNICAL CORRECTIONS TO TITLE 23, U.S.C.
SEC. 1901. REPEAL OR UPDATE OF OBSOLETE TEXT. [Legislation]
Letting Of Contracts: Section 112 of title 23 (Letting of Contracts)
contains an obsolete requirement concerning an exemption for the "secondary
system" in the context of "certification acceptance" (concepts that no longer
exist). This amendment would delete the obsolete exception.
Fringe And Corridor Parking Facilities: Section 137 of title 23
contains the basis for funding fringe and corridor parking facilities, but the
section refers to an obsolete aspect of Federal highway law: "Federal-aid urban
system." The amendment would substitute a meaningful reference for the
Repeal of Obsolete Sections of Title 23: This subsection would
repeal, as obsolete, the following sections of title 23: Priority Primary
Routes (23 U.S.C. 147); Development of a National Scenic and Recreational
Highway (23 U.S.C. 148); and Access Highways to Public Recreational Areas on
Certain Lakes (23 U.S.C. 155).
SEC. 1902. CLARIFICATION OF CERTAIN DATES. [Legislation]
This section would restate, as a calendar date, a date in title 23 that
currently is expressed as a reference to a date of enactment of law, making it
difficult to understand. No change in the actual date would be made.
SEC. 1903. INCLUSION OF REQUIREMENTS FOR SIGNS IDENTIFYING FUNDING SOURCES IN TITLE 23. [Legislation]
Section 154 of the Federal-Aid Highway Act of 1987 (23 U.S.C. 101 note; 101
Stat. 209) establishes the basis for erecting signs at Federally assisted
highway projects identifying the source and amounts of funding being used. This
section would transfer the provision to 23 U.S.C. 321 and make a needed
SEC. 1904. INCLUSION OF "BUY AMERICA" REQUIREMENTS IN TITLE 23. [Legislation]
Section 165 of the Highway Improvement Act of 1982 (Pub. L. 97-424; 96 Stat.
2136) sets forth the "Buy America" provisions governing funds authorized to
carry out title 23. This section would transfer the provision and redesignate
it as 23 U.S.C. 321, make non-substantive, conforming amendments to the text
needed because of the transfer, simplify the text, and delete an executed
SEC. 1905. TECHNICAL AMENDMENTS TO 23 U.S.C. 140 - NONDISCRIMINATION. [Legislation]
This section would make technical amendments to section 140 of title 23,
U.S.C., to eliminate gender-based language; clarify that funding made available
to carry out this section has the same broad availability as the source from
which the funds are made available (a takedown from STP); remove the $2.5
million funding cap on highway construction and technology training programs
established for fiscal year 1976 as no longer necessary; correct a
typographical error; and clarify the purpose and intent of subsection (d) by
modifying the title to remove the reference to Indian contracting.
SEC. 1906. FEDERAL SHARE PAYABLE FOR PROJECTS FOR ELIMINATION OF HAZARDS OF RAILWAY-HIGHWAY CROSSINGS. [Legislation]
This section would codify in title 23 a provision now in section 2604 of
Pub. L. 106-246, which provides 100% Federal funding for "projects involving
the elimination of hazards of railway-highway crossings, including the
separation or protection of grades at crossings, the reconstruction of existing
railroad grade crossing structures, and the relocation of highways to eliminate