§ 5309. Fixed guideway capital investment grants

Pub. L. 114–94, div. A, title III, § 3005(b), Dec. 4, 2015, 129 Stat. 1454, as amended by Pub. L. 117–58, div. C, § 30005(b), Nov. 15, 2021, 135 Stat. 900, provided that: “(1) Definitions.—In this subsection, the following definitions shall apply:“(A) Applicant.—The term ‘applicant’ means a State or local governmental authority that applies for a grant under this subsection. “(B) Capital project; fixed guideway; local governmental authority; public transportation; state; state of good repair.—The terms ‘capital project’, ‘fixed guideway’, ‘local governmental authority’, ‘public transportation’, ‘State’, and ‘state of good repair’ have the meanings given those terms in section 5302 of title 49, United States Code. “(C) Core capacity improvement project.—The term ‘core capacity improvement project’—“(i) means a substantial corridor-based capital investment in an existing fixed guideway system that increases the capacity of a corridor by not less than 10 percent; and “(ii) may include project elements designed to aid the existing fixed guideway system in making substantial progress towards achieving a state of good repair. “(D) Corridor-based bus rapid transit project.—The term ‘corridor-based bus rapid transit project’ means a small start project utilizing buses in which the project represents a substantial investment in a defined corridor as demonstrated by features that emulate the services provided by rail fixed guideway public transportation systems—“(i) including—“(I) defined stations; “(II) traffic signal priority for public transportation vehicles; “(III) short headway bidirectional services for a substantial part of weekdays; and “(IV) any other features the Secretary may determine support a long-term corridor investment; and “(ii) the majority of which does not operate in a separated right-of-way dedicated for public transportation use during peak periods. “(E) Eligible project.—The term ‘eligible project’ means a new fixed guideway capital project, a small start project, or a core capacity improvement project that has not entered into a full funding grant agreement with the Federal Transit Administration before the date of enactment of this Act [Dec. 4, 2015]. “(F) Fixed guideway bus rapid transit project.—The term ‘fixed guideway bus rapid transit project’ means a bus capital project—“(i) in which the majority of the project operates in a separated right-of-way dedicated for public transportation use during peak periods; “(ii) that represents a substantial investment in a single route in a defined corridor or subarea; and “(iii) that includes features that emulate the services provided by rail fixed guideway public transportation systems, including—“(I) defined stations; “(II) traffic signal priority for public transportation vehicles; “(III) short headway bidirectional services for a substantial part of weekdays and weekend days; and “(IV) any other features the Secretary may determine are necessary to produce high-quality public transportation services that emulate the services provided by rail fixed guideway public transportation systems. “(G) New fixed guideway capital project.—The term ‘new fixed guideway capital project’ means—“(i) a fixed guideway capital project that is a minimum operable segment or extension to an existing fixed guideway system; or “(ii) a fixed guideway bus rapid transit project that is a minimum operable segment or an extension to an existing bus rapid transit system. “(H) Recipient.—The term ‘recipient’ means a recipient of funding under chapter 53 of title 49, United States Code. “(I) Small start project.—The term ‘small start project’ means a new fixed guideway capital project, a fixed guideway bus rapid transit project, or a corridor-based bus rapid transit project for which—“(i) the Federal assistance provided or to be provided under this subsection is less than $150,000,000; and “(ii) the total estimated net capital cost is less than $400,000,000. “(2) General authority.—The Secretary may make grants under this subsection to States and local governmental authorities to assist in financing—“(A) new fixed guideway capital projects or small start projects, including the acquisition of real property, the initial acquisition of rolling stock for the system, the acquisition of rights-of-way, and relocation, for projects in the advanced stages of planning and design; and “(B) core capacity improvement projects, including the acquisition of real property, the acquisition of rights-of-way, double tracking, signalization improvements, electrification, expanding system platforms, acquisition of rolling stock associated with corridor improvements increasing capacity, construction of infill stations, and such other capacity improvement projects as the Secretary determines are appropriate to increase the capacity of an existing fixed guideway system corridor by not less than 10 percent. Core capacity improvement projects do not include elements to improve general station facilities or parking, or acquisition of rolling stock alone. “(3) Grant requirements.—“(A) In general.—The Secretary may make not more than 8 grants under this subsection for eligible projects if the Secretary determines that—“(i) the eligible project is part of an approved transportation plan required under sections 5303 and 5304 of title 49, United States Code; “(ii) the applicant has, or will have—“(I) the legal, financial, and technical capacity to carry out the eligible project, including the safety and security aspects of the eligible project; “(II) satisfactory continuing control over the use of the equipment or facilities; “(III) the technical and financial capacity to maintain new and existing equipment and facilities; and “(IV) advisors providing guidance to the applicant on the terms and structure of the project that are independent from investors in the project; “(iii) the eligible project is supported, or will be supported, in part, through a public-private partnership, provided such support is determined by local policies, criteria, and decisionmaking under section 5306(a) of title 49, United States Code; “(iv) the eligible project is justified based on findings presented by the project sponsor to the Secretary, including—“(I) mobility improvements attributable to the project; “(II) environmental benefits associated with the project; “(III) congestion relief associated with the project; “(IV) economic development effects derived as a result of the project; and “(V) estimated ridership projections; “(v) the eligible project is supported by an acceptable degree of local financial commitment (including evidence of stable and dependable financing sources); and “(vi) the eligible project will be operated and maintained by employees of an existing provider of fixed guideway or bus rapid transit public transportation in the service area of the project, or if none exists, by employees of an existing public transportation provider in the service area. “(B) Certification.—An applicant that has submitted the certifications required under subparagraphs (A), (B), (C), and (H) of section 5307(c)(1) of title 49, United States Code, shall be deemed to have provided sufficient information upon which the Secretary may make the determinations required under this paragraph. “(C) Technical capacity.—The Secretary shall use an expedited technical capacity review process for applicants that have recently and successfully completed not less than 1 new fixed guideway capital project, small start project, or core capacity improvement project, if—“(i) the applicant achieved budget, cost, and ridership outcomes for the project that are consistent with or better than projections; and “(ii) the applicant demonstrates that the applicant continues to have the staff expertise and other resources necessary to implement a new project. “(D) Financial commitment.—“(i) Requirements.—In determining whether an eligible project is supported by an acceptable degree of local financial commitment and shows evidence of stable and dependable financing sources for purposes of subparagraph (A)(v), the Secretary shall require that—“(I) each proposed source of capital and operating financing is stable, reliable, and available within the proposed eligible project timetable; and “(II) resources are available to recapitalize, maintain, and operate the overall existing and proposed public transportation system, including essential feeder bus and other services necessary, without degradation to the existing level of public transportation services. “(ii) Considerations.—In assessing the stability, reliability, and availability of proposed sources of financing under clause (i), the Secretary shall consider—“(I) the reliability of the forecasting methods used to estimate costs and revenues made by the applicant and the contractors to the applicant; “(II) existing grant commitments; “(III) the degree to which financing sources are dedicated to the proposed eligible project; “(IV) any debt obligation that exists or is proposed by the applicant, for the proposed eligible project or other public transportation purpose; and “(V) private contributions to the eligible project, including cost-effective project delivery, management or transfer of project risks, expedited project schedule, financial partnering, and other public-private partnership strategies. “(E) Labor standards.—The requirements under section 5333 of title 49, United States Code, shall apply to each recipient of a grant under this subsection. “(4) Project advancement.—An applicant that desires a grant under this subsection and meets the requirements of paragraph (3) shall submit to the Secretary, and the Secretary shall approve for advancement, a grant request that contains—“(A) identification of an eligible project; “(B) a schedule and finance plan for the construction and operation of the eligible project; “(C) an analysis of the efficiencies of the proposed eligible project development and delivery methods and innovative financing arrangement for the eligible project, including any documents related to the—“(i) public-private partnership required under paragraph (3)(A)(iii); and “(ii) project justification required under paragraph (3)(A)(iv); and “(D) a certification that the existing public transportation system of the applicant or, in the event that the applicant does not operate a public transportation system, the public transportation system to which the proposed project will be attached, is in a state of good repair. “(5) Written notice from the secretary.—“(A) In general.—Not later than 120 days after the date on which the Secretary receives a grant request of an applicant under paragraph (4), the Secretary shall provide written notice to the applicant—“(i) of approval of the grant request; or “(ii) if the grant request does not meet the requirements under paragraph (4), of disapproval of the grant request, including a detailed explanation of the reasons for the disapproval. “(B) Concurrent notice.—The Secretary shall provide concurrent notice of an approval or disapproval of a grant request under subparagraph (A) to the Committee on Banking, Housing, and Urban Affairs of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives. “(6) Waiver.—The Secretary may grant a waiver to an applicant that does not comply with paragraph (4)(D) if—“(A) the eligible project meets the definition of a core capacity improvement project; and “(B) the Secretary certifies that the eligible project will allow the applicant to make substantial progress in achieving a state of good repair. “(7) Selection criteria.—The Secretary may enter into a full funding grant agreement with an applicant under this subsection for an eligible project for which an application has been submitted and approved for advancement by the Secretary under paragraph (4), only if the applicant has completed the planning and activities required under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.). “(8) Letters of intent and full funding grant agreements.—“(A) Letters of intent.—“(i) Amounts intended to be obligated.—The Secretary may issue a letter of intent to an applicant announcing an intention to obligate, for an eligible project under this subsection, an amount from future available budget authority specified in law that is not more than the amount stipulated as the financial participation of the Secretary in the eligible project. When a letter is issued for an eligible project under this subsection, the amount shall be sufficient to complete at least an operable segment. “(ii) Treatment.—The issuance of a letter under clause (i) is deemed not to be an obligation under section 1108(c), 1501, or 1502(a) of title 31, United States Code, or an administrative commitment. “(B) Full funding grant agreements.—“(i) In general.—Except as provided in clause (v), an eligible project shall be carried out under this subsection through a full funding grant agreement. “(ii) Criteria.—The Secretary shall enter into a full funding grant agreement, based on the requirements of this subparagraph, with each applicant receiving assistance for an eligible project that has received a written notice of approval under paragraph (5)(A)(i). “(iii) Terms.—A full funding grant agreement shall—“(I) establish the terms of participation by the Federal Government in the eligible project; “(II) establish the maximum amount of Federal financial assistance for the eligible project; “(III) include the period of time for completing construction of the eligible project, consistent with the terms of the public-private partnership agreement, even if that period extends beyond the period of an authorization; and “(IV) make timely and efficient management of the eligible project easier according to the law of the United States. “(iv) Special financial rules.—“(I) In general.—A full funding grant agreement under this subparagraph obligates an amount of available budget authority specified in law and may include a commitment, contingent on amounts to be specified in law in advance for commitments under this subparagraph, to obligate an additional amount from future available budget authority specified in law. “(II) Statement of contingent commitment.—A full funding grant agreement shall state that the contingent commitment is not an obligation of the Federal Government. “(III) Interest and other financing costs.—Interest and other financing costs of efficiently carrying out a part of the eligible project within a reasonable time are a cost of carrying out the eligible project under a full funding grant agreement, except that eligible costs may not be more than the cost of the most favorable financing terms reasonably available for the eligible project at the time of borrowing. The applicant shall certify, in a way satisfactory to the Secretary, that the applicant has shown reasonable diligence in seeking the most favorable financing terms. “(IV) Completion of operable segment.—The amount stipulated in an agreement under this subparagraph for a new fixed guideway capital project, core capacity improvement project, or small start project shall be sufficient to complete at least an operable segment. “(v) Exception.—“(I) In general.—The Secretary, to the maximum extent practicable, shall provide Federal assistance under this subsection for a small start project in a single grant. If the Secretary cannot provide such a single grant, the Secretary may execute an expedited grant agreement in order to include a commitment on the part of the Secretary to provide funding for the project in future fiscal years. “(II) Terms of expedited grant agreements.—In executing an expedited grant agreement under this clause, the Secretary may include in the agreement terms similar to those established under clause (iii). “(C) Limitation on amounts.—“(i) In general.—The Secretary may enter into full funding grant agreements under this paragraph for eligible projects that contain contingent commitments to incur obligations in such amounts as the Secretary determines are appropriate. “(ii) Appropriation required.—An obligation may be made under this paragraph only when amounts are appropriated for obligation. “(D) Notification to congress.—“(i) In general.—Not later than 15 days before the date on which the Secretary issues a letter of intent or enters into a full funding grant agreement for an eligible project under this paragraph, the Secretary shall notify, in writing, the Committee on Banking, Housing, and Urban Affairs and the Committee on Appropriations of the Senate and the Committee on Transportation and Infrastructure and the Committee on Appropriations of the House of Representatives of the proposed letter of intent or full funding grant agreement. “(ii) Contents.—The written notification under clause (i) shall include a copy of the proposed letter of intent or full funding grant agreement for the eligible project. “(9) Government share of net capital project cost.—“(A) In general.—A grant for an eligible project shall not exceed 25 percent of the net capital project cost. “(B) Remainder of net capital project cost.—The remainder of the net capital project cost shall be provided from an undistributed cash surplus, a replacement or depreciation cash fund or reserve, or new capital. “(C) Limitation on statutory construction.—Nothing in this subsection shall be construed as authorizing the Secretary to require a non-Federal financial commitment for a project that is more than 75 percent of the net capital project cost. “(D) Special rule for rolling stock costs.—In addition to amounts allowed pursuant to subparagraph (A), a planned extension to a fixed guideway system may include the cost of rolling stock previously purchased if the applicant satisfies the Secretary that only amounts other than amounts provided by the Federal Government were used and that the purchase was made for use on the extension. A refund or reduction of the remainder may be made only if a refund of a proportional amount of the grant of the Federal Government is made at the same time. “(E) Failure to carry out project.—If an applicant does not carry out an eligible project for reasons within the control of the applicant, the applicant shall repay all Federal funds awarded for the eligible project from all Federal funding sources, for all eligible project activities, facilities, and equipment, plus reasonable interest and penalty charges allowable by law. “(F) Crediting of funds received.—Any funds received by the Federal Government under this paragraph, other than interest and penalty charges, shall be credited to the appropriation account from which the funds were originally derived. “(10) Availability of amounts.—“(A) In general.—An amount made available for an eligible project shall remain available to that eligible project for 4 fiscal years, including the fiscal year in which the amount is made available. Any amounts that are unobligated to the eligible project at the end of the 4-fiscal-year period may be used by the Secretary for any purpose under this subsection. “(B) Use of deobligated amounts.—An amount available under this subsection that is deobligated may be used for any purpose under this subsection. “(11) Annual report on expedited project delivery for capital investment grants.—Not later than the first Monday in February of each year, the Secretary shall submit to the Committee on Banking, Housing, and Urban Affairs and the Committee on Appropriations of the Senate and the Committee on Transportation and Infrastructure and the Committee on Appropriations of the House of Representatives a report that includes a proposed amount to be available to finance grants for anticipated projects under this subsection. “(12) Rule of construction.—Nothing in this subsection shall be construed to—“(A) require the privatization of the operation or maintenance of any project for which an applicant seeks funding under this subsection; “(B) revise the determinations by local policies, criteria, and decisionmaking under section 5306(a) of title 49, United States Code; “(C) alter the requirements for locally developed, coordinated, and implemented transportation plans under sections 5303 and 5304 of title 49, United States Code; or “(D) alter the eligibilities or priorities for assistance under this subsection or section 5309 of title 49, United States Code.”

Development of Implementation Guidance

Pub. L. 113–235, div. K, title I, § 167, Dec. 16, 2014, 128 Stat. 2720, provided that: “In developing guidance implementing 49 U.S.C. 5309(i) Program of Interrelated Projects, the Secretary shall consider projects eligible under section 5309(h) Small Starts Projects, including streetcars.”

Pilot Program for Expedited Project Delivery

Pub. L. 112–141, div. B, § 20008(b), July 6, 2012, 126 Stat. 674, which related to a pilot program for expedited project delivery, was repealed by Pub. L. 114–94, div. A, title III, § 3030(a), Dec. 4, 2015, 129 Stat. 1496.

Non-New Starts Share of Public Transportation Element of Interstate Multi-Modal Projects

Pub. L. 111–117, div. A, title I, § 173, Dec. 16, 2009, 123 Stat. 3066, provided that the rating under former subsec. (d) of this section of the non-New Starts share of the public transportation element of certain interstate multi-modal projects would be based on the percentage of non-New Starts funds in the unified finance plan.

Transit Tunnels

Pub. L. 110–244, title II, § 201(p), June 6, 2008, 122 Stat. 1615, required the Secretary of Transportation to analyze the various benefits of transit tunnels.

Public-Private Partnership Pilot Program

Pub. L. 109–59, title III, § 3011(c), Aug. 10, 2005, 119 Stat. 1588, as amended by Pub. L. 111–147, title IV, § 437(b)(1), Mar. 18, 2010, 124 Stat. 92; Pub. L. 111–322, title II, § 2307(b)(1), Dec. 22, 2010, 124 Stat. 3530; Pub. L. 112–5, title III, § 307(b)(1), Mar. 4, 2011, 125 Stat. 21; Pub. L. 112–30, title I, § 137(b)(1), Sept. 16, 2011, 125 Stat. 354; Pub. L. 112–102, title III, § 307(b)(1), Mar. 30, 2012, 126 Stat. 280; Pub. L. 112–140, title III, § 307(b)(1), June 29, 2012, 126 Stat. 401; Pub. L. 112–141, div. G, title III, § 113007(b)(1), July 6, 2012, 126 Stat. 987, which provided for the establishment and implementation of a pilot program to demonstrate the advantages and disadvantages of public-private partnerships for certain new fixed guideway capital projects, was repealed by Pub. L. 112–141, div. B, § 20002(c)(2), July 6, 2012, 126 Stat. 622.

Report to Congress on Use of Funds Under Pub. L. 105–178

Pub. L. 105–200, title IV, § 403(b), July 16, 1998, 112 Stat. 670, required the Secretary of Transportation to submit a report, no later than 2 years after July 16, 1998, on the use of funds made available under section 3037 of Pub. L. 105–178.

Dollar Value of Mobility Improvements

Pub. L. 105–178, title III, § 3010, June 9, 1998, 112 Stat. 357, as amended by Pub. L. 105–206, title IX, § 9009(i), July 22, 1998, 112 Stat. 856, prohibited the consideration of the dollar value of mobility improvements in performing certain duties of the Secretary and required the Comptroller General to study and report on the dollar value of mobility improvements no later than Jan. 1, 2000.

Job Access and Reverse Commute Grants

Pub. L. 105–178, title III, § 3037, June 9, 1998, 112 Stat. 387, as amended by Pub. L. 105–206, title IX, § 9009(w), July 22, 1998, 112 Stat. 862; Pub. L. 108–88, § 8(l), Sept. 30, 2003, 117 Stat. 1124; Pub. L. 108–202, § 9(l), Feb. 29, 2004, 118 Stat. 488; Pub. L. 108–224, § 7(l), Apr. 30, 2004, 118 Stat. 636; Pub. L. 108–263, § 7(l), June 30, 2004, 118 Stat. 707; Pub. L. 108–280, § 7(l), July 30, 2004, 118 Stat. 884; Pub. L. 108–310, § 8(l), Sept. 30, 2004, 118 Stat. 1157; Pub. L. 109–14, § 7(k), May 31, 2005, 119 Stat. 333; Pub. L. 109–20, § 7(k), July 1, 2005, 119 Stat. 355; Pub. L. 109–35, § 7(k), July 20, 2005, 119 Stat. 388; Pub. L. 109–37, § 7(k), July 22, 2005, 119 Stat. 403; Pub. L. 109–40, § 7(k), July 28, 2005, 119 Stat. 420, which authorized the Secretary of Transportation to make access to jobs grants and reverse commute grants to assist qualified entities in financing eligible projects, was repealed by Pub. L. 109–59, title III, § 3018(c), Aug. 10, 2005, 119 Stat. 1605, effective Oct. 1, 2005.

Encouragement of Adversely Affected Industries To Compete for Contracts

Pub. L. 91–453, § 10, Oct. 15, 1970, 84 Stat. 968, as amended by Pub. L. 102–240, title III, § 3003(b), Dec. 18, 1991, 105 Stat. 2088, encouraged industries adversely affected by reductions in Federal Government spending to compete for contracts under former sections 5309 and 5312 of this title.