Senate Passes the Infrastructure Investment and Jobs Act

 

The Senate has passed the “Infrastructure Investment and Jobs Act” by a vote of 69 to 30. The 2,702-page bill reauthorizes surface transportation programs and appropriates specific funding for certain categories of funding. It is unclear when the House of Representatives will consider the measure.

 

The bill provides:

• $106.9 billion for public transit, an increase of $41.1 billion (63 percent) from current levels, including:
  
  - $69.9 billion of contract authority;
  - $15.8 billion of General Fund authorizations for Capital Investment Grants (CIG) and the Washington Metropolitan Area Transit Authority (WMATA); and
  - $21.2 billion of advance appropriations for fiscal year (FY) 2022 through FY 2026;
   
• $102.1 billion for passenger and freight rail, an increase of $86.7 billion (561 percent) from current levels, including:
  
  - $36.1 billion of General Fund authorizations;
  - $66.0 billion of advance appropriations for FY 2022 through FY 2026; and
   
• Significant opportunities for multimodal investments that include public transit and passenger rail as essential elements.

 

On August 2, APTA President and CEO Paul P. Skoutelas issued a statement expressing strong support for the Infrastructure Investment and Jobs Act.

 

Please click here to view APTA’s table of public transit investment and passenger rail investment under the Infrastructure Investment and Jobs Act.

 

In terms of APTA’s Top Priorities, the bill:

• provides a long-term surface transportation authorization act and provides significant increases in investment to put public transit agencies on a path to modernize their systems and meet the growing and evolving demands of our communities;
• when considering all funding provided in the bill (including the advance appropriations), significantly increases the bus capital share of funding to a 19 percent share for bus investment under the 40-40-20 capital investment ratio; and
• does not include APTA’s Mobility Innovation and Technology Initiative but it also does not include any of the limiting language in the House-passed INVEST in America Act.  

Public Transit

 

The bill provides $106.9 billion for public transit, an increase of $41.1 billion (63 percent) from current levels. It provides $69.9 billion of contract authority and increases each of the formula and competitive grant programs by 35-37 percent compared to current levels. It also provides $15 billion of General Fund authorizations for CIG grants and $750 million for WMATA over the five-year period.

 

Please click here to view a table of formula funding by state, prepared by the Senate Committee on Banking, Housing, and Urban Affairs.

 

In addition, the bill provides $21.25 billion of advance appropriations, including:

• $8 billion for § 5309 CIG grants;
• 250 million for § 5310 Seniors and Individuals with Disabilities grants;
• $4.75 billion for § 5337 State of Good Repair grants
• $5.25 billion for § 5339 Low or No Emission Bus Competitive grants
• $1.75 billion for All Stations Accessibility Program Competitive grants;
• $250 million for Electric or Low Emitting Ferry Competitive grants; and
• $1 billion for Rural Communities Essential Ferry Service Competitive grants.

The bill includes the following key policy provisions, including numerous APTA Recommendations:

• Increases the Small Transit Intensive Cities (STIC) set-aside from two percent to three percent

 

Transit-Oriented Development

• Authorizes grants under the Pilot Program for Transit-Oriented Development for site-specific planning associated with a New Start or Core Capacity project.

 

New Programs

• Authorizes a new State of Good Repair competitive grant program to replace rail rolling stock; provides a set-aside of $300 million per year for the program under the § 5337 State of Good Repair grant program;
• Appropriates funds to a new All Stations Accessibility Program (ASAP) competitive grant program to provide grants to upgrade the accessibility of legacy rail fixed guideway public transportation systems for persons with disabilities by increasing the number of stations that meet or exceed Americans with Disabilities Act standards; and
• Appropriates funds to two new ferry grant programs, Electric or low-Emitting competitive grants and Rural Community Essential Ferry Service grants.

 

Planning

• Adds “and better connect housing and employment” to the policy regarding national interest;
• Requires Metropolitan Planning Organizations to provide affordable housing organizations a reasonable opportunity to comment on the metropolitan transportation plan; and
• Provides a federal share of at least 90 percent for an activity that assists parts of an urbanized area or rural area with lower population density or lower average income levels compared to area.

 

Public Transportation Safety Program

• Requires that the national public transportation safety plan include safety performance measures and minimum safety performance standards for public transportation vehicles;
• Requires that the comprehensive agency safety plan include strategies to minimize exposure to infectious diseases; safety performance measures; a comprehensive safety training program for the operations and maintenance personnel; and a risk reduction program for transit operations to improve safety by reducing the number of accidents, injuries, and assaults on transit workers;
• Requires that the safety committee of § 5307 recipients establish performance targets for the risk reduction program using a 3-year average of NTD data; requires the safety committee for § 5307 recipients be convened by a joint labor-management process and consist of an equal number of frontline employee representatives (selected by a labor organization) and management representatives; and
• Provides State safety oversight agencies with authority to enter the facilities of each rail fixed guideway system to inspect infrastructure, equipment, records, personnel, and data.

 

National Transit Database

• Requires grant recipients to report any data on assaults on transit workers and any data on fatalities that result from an impact with a bus to the NTD.

 

Please click here to view a section-by-section analysis of the bill prepared by the Senate Committee on Banking, Housing, and Urban Affairs.

 

 

Passenger Rail

 

The bill provides $102.1 billion for passenger and freight rail, an increase of $86.7 billion (561 percent) from current levels.
 

It provides $36 billion in General Fund authorizations, including:

• $19.2 billion for Amtrak investment, including:
  
  - $6.57 billion for Northeast Corridor (NEC) grants; and
  - $12.65 billion for National Network grants;
   
• $15 billion for competitive rail grants, including:
  
  - $5 billion for the Consolidated Rail Infrastructure and Safety Improvement  (CRISI) grants;
  - $7.5 billion for the Federal-State Partnership for Intercity Passenger Rail grants;
  - $2.5 billion for a new Railroad Crossing Elimination competitive grant; and
  - $250 million for the Restoration and Enhancement grants program.

 

In addition, the bill provides $66 billion of advance appropriations, including:

• $6 billion for NEC Grants;
• $16 billion for National Network grants;
• $36 billion for the Federal-State Partnership for Intercity Passenger Rail grant program (with a set-aside of not more than $24 billion for projects on the NEC);
• $5 billion for the CRISI program; and
• $3 billion for the new Railroad Crossing Elimination grant program.

The bill also includes key policy provisions focused on intercity passenger rail, such as:

 

Consolidated Rail Infrastructure and Safety Improvements

• Expands applicant eligibility to, among others, the District of Columbia and federally recognized Indian Tribes;
   
• Adds to the list of eligible projects: trespassing prevention; advancing innovative rail technologies; improving hazardous material emergency response plans; and rehabilitating, remanufacturing, procuring or overhauling locomotives, provided that there is a significant reduction of emissions; and
   
• Permits applicants to use the costs incurred previously for preliminary engineering associated with highway-rail grade crossing improvement projects and trespassing prevention projects to satisfy the non-Federal share requirements.

 

Restoration and Enhancement Grants 

• Expands applicant eligibility to include federally recognized Indian Tribes;
   
• Defines the term “operating assistance” with respect to any route subject to section 209 of the Passenger Rail Investment and Improvement Act of 2008 (P.L. 110-432) to mean any cost allocated or that may be allocated to a route pursuant to the cost methodology established under such section or section 24712; and
   
• Provides support for a route for up to six years, with a declining federal share.

 

Railroad Crossing Elimination Program

• Establishes a new competitive grant program for projects that make improvements to highway or pathway rail crossings.
   
• Eligible projects include: grade separation or closure, including through the use of a bridge, embankment or tunnel; track relocation; improvement or installation of protective devices, signals or signs provided that they are related to a separation or relocation project; other means to improve safety at crossings (including technology); or the planning, environmental review, and design of a project;
   
• Provides eligibility for commuter rail railroad crossing projects.
   
• Sets aside 25 percent for planning and 20 percent for projects in rural areas or Tribal lands. No state may receive more than 20 percent of the grant funds available in any fiscal year. No grants (except planning grants) awarded shall be for less than $1 million.

 

Interstate Rail Compacts

• Establishes a new competitive grant program to provide financial assistance to entities implementing interstate rail compacts for costs of administration, systems planning, promotion, and operations coordination.
   
• Grants are awarded to applicants with eligible expenses related to intercity passenger rail service to be operated by Amtrak.
   
• Limits grants to no more than 10 grants in any fiscal year, and grants may not exceed $1,000,000 each.
   
• Requires recipients to provide a non-federal match of at least 50 percent.

 

Federal-State Partnership for Intercity Passenger Rail Grants

• Broadens the program’s focus to intercity passenger rail to improve performance or establish new intercity passenger rail service, including privately operated intercity passenger rail service if an eligible applicant is involved.
   
• Expands project eligibility to include: replacing, rehabilitating or repairing infrastructure, equipment or a facility used to provide intercity passenger rail to a state of good repair; improving intercity passenger rail performance (e.g., reduce trip times, increase frequencies, higher operating speeds); expanding or establishing new intercity passenger rail service; a group of related projects; and planning, environmental studies, and final design for a project or group of projects.
   
• For projects not located on the NEC, provides a preference for eligible projects: for which Amtrak is not the sole applicant; that improve the financial performance, reliability, frequency or address the state of good repair on an Amtrak route; and that are identified in the new Corridor Identification and Development Program.
   
• Sets aside not less than 45 percent of the funds for projects not located on the NEC; 20 percent of those funds must benefit a long-distance route.
   
• Sets aside not less than 45 percent of the funds for projects listed on the Northeast Corridor project inventory required under this program.
   
• Permits the Federal Railroad Administration to provide funding to a project over multiple years through a phased funding agreement and letter of intent if the project is highly rated and federal assistance for the projects is more than $80 million.

 

Corridor Identification and Development Program

• Establishes a new Corridor Identification and Development Program to facilitate the development of intercity passenger rail corridors, including new intercity passenger rail routes, enhancement of existing routes, restoration of services, and increase of service frequency of a long-distance route;
   
• Permits Amtrak or a private rail carrier to be a service operator; and
   
• Eligible entities include: Amtrak, States, group of states, entities implementing interstate compacts, regional passenger rail authorities, regional planning organizations, political subdivisions of a state, Tribes, and other public entities determined by the Secretary.

 

Surface Transportation Board Passenger Rail Program

• Directs the Surface Transportation Board to hire additional full-time employees to assist in carrying out its passenger rail responsibilities.

 

Buy America

 

The bill includes a title addressing Buy America requirements for infrastructure projects. Under the program, each federal agency must:

• submit to the Office of Management and Budget (OMB), a report that identifies each Federal financial assistance program for infrastructure administered by the agency. The report must identify all domestic content procurement requirements applicable; assess the applicability of domestic content procurement preference requirements in current law; provide details on any applicable domestic content procurement preference requirement, and any exceptions or waivers; and describe the types of infrastructure projects that receive funding under the program. In addition, the report must identify programs for which the domestic content procurement preference does not apply or is subject to a waiver.
   
• within 180 days, “ensure that none of the funds made available or a Federal financial assistance program for infrastructure, including each deficient program, may be obligated for a project unless all of the iron, steel, and manufactured products and construction materials used in the project are produced in the United States.”

Note that the bill excludes from the definition of construction materials: cement and cementitious materials; aggregates such as stone, sand, or gravel; or aggregate binding agents or additives.

A federal agency may waive the application of the domestic content procurement preference where:

• applying the preference would be inconsistent with the public interest;
   
• the types of iron, steel, manufactured goods, or construction materials are not produced in sufficient and reasonably available quantities or satisfactory quality; or
   
• the inclusion of the materials produced in the United States will increase the cost of the project by more than 25 percent

Before a federal agency may grant a waiver, it must make it publicly available and provide at least 15 days for public comment.

The bill directs OMB to issue guidance to assist in identifying deficient programs and applying new domestic content procurement standards, and to define the term “all manufacturing processes” in the case of construction materials (except for the exempt materials listed above). 

 

Finally, the bill requires the Secretary of Transportation to enter into a technical assistance partnership with the Secretary of Commerce to:

• ensure the development of a domestic supply base to support intermodal transportation in the United States (e.g., intercity high-speed rail and public transportation);
• ensure compliance with Buy America laws that apply to a project receiving assistance from a DOT modal program;
• encourage technologies developed with the support of and resources from the Secretary to be transitioned into commercial market and application; and
• establish procedures for consultation with the Hollings Manufacturing Extension Partnership.