§ 5309. Fixed guideway capital investment grants

49 U.S.C. § 5309 (N/A)

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In this section, the following definitions shall apply:

(1) Applicant.— The term “applicant” means a State or local governmental authority that applies for a grant under this section.

(2) Core capacity improvement project.— The term “core capacity improvement project” 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. The term does not include project elements designed to maintain a state of good repair of the existing fixed guideway system.

(3) 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, including defined stations; traffic signal priority for public transportation vehicles; short headway bidirectional services for a substantial part of weekdays; and any other features the Secretary may determine support a long-term corridor investment, but the majority of which does not operate in a separated right-of-way dedicated for public transportation use during peak periods.

The term “fixed guideway bus rapid transit project” means a bus capital project—

(A) in which the majority of the project operates in a separated right-of-way dedicated for public transportation use during peak periods;

(B) that represents a substantial investment in a single route in a defined corridor or subarea; and

(C) 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.

The term “new fixed guideway capital project” means—

(A) a new fixed guideway project that is a minimum operable segment or extension to an existing fixed guideway system; or

(B) a fixed guideway bus rapid transit project that is a minimum operable segment or an extension to an existing bus rapid transit system.

The term “program of interrelated projects” means the simultaneous development of—

(A) 2 or more new fixed guideway capital projects, small start projects, or core capacity improvement projects; or

(B) 2 or more projects that are any combination of new fixed guideway capital projects, small start projects, and core capacity improvement projects.

The term “small start project” means a new fixed guideway capital project or corridor-based bus rapid transit project for which—

(A) the Federal assistance provided or to be provided under this section is less than $100,000,000; and

(B) the total estimated net capital cost is less than $300,000,000.

The Secretary may make grants under this section to State and local governmental authorities to assist in financing—

(1) 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 fixed guideway corridor development for projects in the advanced stages of project development or engineering; and

(2) 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 at least 10 percent. Core capacity improvement projects do not include elements to improve general station facilities or parking, or acquisition of rolling stock alone.

The Secretary may make a grant under this section for new fixed guideway capital projects, small start projects, or core capacity improvement projects, if the Secretary determines that—

(A) the project is part of an approved transportation plan required under sections 5303 and 5304; and

(B) the applicant has, or will have— (i) the legal, financial, and technical capacity to carry out the project, including the safety and security aspects of the project; (ii) satisfactory continuing control over the use of the equipment or facilities; and (iii) the technical and financial capacity to maintain new and existing equipment and facilities.

(2) Certification.— An applicant that has submitted the certifications required under subparagraphs (A), (B), (C), and (H) of section 5307(c)(1) shall be deemed to have provided sufficient information upon which the Secretary may make the determinations required under this subsection.

The Secretary shall use an expedited technical capacity review process for applicants that have recently and successfully completed at least 1 new fixed guideway capital project, or core capacity improvement project, if—

(A) the applicant achieved budget, cost, and ridership outcomes for the project that are consistent with or better than projections; and

(B) the applicant demonstrates that the applicant continues to have the staff expertise and other resources necessary to implement a new project.

(4) Recipient requirements.— A recipient of a grant awarded under this section shall be subject to all terms, conditions, requirements, and provisions that the Secretary determines to be necessary or appropriate for purposes of this section.

A new fixed guideway capital project shall enter into the project development phase when—

(A) Entrance into project development phase.—A new fixed guideway capital project shall enter into the project development phase when— (i) the applicant— (I) submits a letter to the Secretary describing the project and requesting entry into the project development phase; and (II) initiates activities required to be carried out under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) with respect to the project; and (ii) the Secretary— (I) responds in writing to the applicant within 45 days whether the information provided is sufficient to enter into the project development phase, including, when necessary, a detailed description of any information deemed insufficient; and (II) provides concurrent notice to the Committee on Banking, Housing, and Urban Affairs of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives of whether the new fixed guideway capital project is entering the project development phase.

(B) Activities during project development phase.— Concurrent with the analysis required to be made under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), each applicant shall develop sufficient information to enable the Secretary to make findings of project justification and local financial commitment under this subsection.

(C) Completion of project development activities required.— (i) In general.— Not later than 2 years after the date on which a project enters into the project development phase, the applicant shall complete the activities required to obtain a project rating under subsection (g)(2) and submit completed documentation to the Secretary. (ii) Extension of time.—Upon the request of an applicant, the Secretary may extend the time period under clause (i), if the applicant submits to the Secretary— (I) a reasonable plan for completing the activities required under this paragraph; and (II) an estimated time period within which the applicant will complete such activities.

A new fixed guideway capital project may advance to the engineering phase upon completion of activities required under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), as demonstrated by a record of decision with respect to the project, a finding that the project has no significant impact, or a determination that the project is categorically excluded, only if the Secretary determines that the project—

(A) In general.—A new fixed guideway capital project may advance to the engineering phase upon completion of activities required under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), as demonstrated by a record of decision with respect to the project, a finding that the project has no significant impact, or a determination that the project is categorically excluded, only if the Secretary determines that the project— (i) is selected as the locally preferred alternative at the completion of the process required under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.); (ii) is adopted into the metropolitan transportation plan required under section 5303; (iii) is justified based on a comprehensive review of the project’s mobility improvements, the project’s environmental benefits, congestion relief associated with the project, economic development effects associated with the project, policies and land use patterns of the project that support public transportation, and the project’s cost-effectiveness as measured by cost per rider; and (iv) is supported by an acceptable degree of local financial commitment (including evidence of stable and dependable financing sources), as required under subsection (f).

(B) Determination that project is justified.—In making a determination under subparagraph (A)(iii), the Secretary shall evaluate, analyze, and consider— (i) the reliability of the forecasting methods used to estimate costs and utilization made by the recipient and the contractors to the recipient; and (ii) population density and current public transportation ridership in the transportation corridor.

A core capacity improvement project shall be deemed to have entered into the project development phase if—

(A) Entrance into project development phase.—A core capacity improvement project shall be deemed to have entered into the project development phase if— (i) the applicant— (I) submits a letter to the Secretary describing the project and requesting entry into the project development phase; and (II) initiates activities required to be carried out under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) with respect to the project; and (ii) the Secretary— (I) responds in writing to the applicant within 45 days whether the information provided is sufficient to enter into the project development phase, including when necessary a detailed description of any information deemed insufficient; and (II) provides concurrent notice to the Committee on Banking, Housing, and Urban Affairs of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives of whether the core capacity improvement project is entering the project development phase.

A core capacity improvement project may advance into the engineering phase upon completion of activities required under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), as demonstrated by a record of decision with respect to the project, a finding that the project has no significant impact, or a determination that the project is categorically excluded, only if the Secretary determines that the project—

(A) In general.—A core capacity improvement project may advance into the engineering phase upon completion of activities required under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), as demonstrated by a record of decision with respect to the project, a finding that the project has no significant impact, or a determination that the project is categorically excluded, only if the Secretary determines that the project— (i) is selected as the locally preferred alternative at the completion of the process required under the National Environmental Policy Act of 1969; (ii) is adopted into the metropolitan transportation plan required under section 5303; (iii) is in a corridor that is— (I) at or over capacity; or (II) projected to be at or over capacity within the next 5 years; (iv) is justified based on a comprehensive review of the project’s mobility improvements, the project’s environmental benefits, congestion relief associated with the project, economic development effects associated with the project, the capacity needs of the corridor, and the project’s cost-effectiveness as measured by cost per rider; and (v) is supported by an acceptable degree of local financial commitment (including evidence of stable and dependable financing sources), as required under subsection (f).

(B) Determination that project is justified.—In making a determination under subparagraph (A)(iv), the Secretary shall evaluate, analyze, and consider— (i) the reliability of the forecasting methods used to estimate costs and utilization made by the recipient and the contractors to the recipient; (ii) whether the project will increase capacity at least 10 percent in a corridor; (iii) whether the project will improve interconnectivity among existing systems; and (iv) whether the project will improve environmental outcomes.

In determining whether a project is supported by an acceptable degree of local financial commitment and shows evidence of stable and dependable financing sources for purposes of subsection (d)(2)(A)(v) or (e)(2)(A)(v), the Secretary shall require that—

(A) the proposed project plan provides for the availability of contingency amounts that the Secretary determines to be reasonable to cover unanticipated cost increases or funding shortfalls;

(B) each proposed local source of capital and operating financing is stable, reliable, and available within the proposed project timetable; and

(C) local resources are available to recapitalize, maintain, and operate the overall existing and proposed public transportation system, including essential feeder bus and other services necessary to achieve the projected ridership levels without requiring a reduction in existing public transportation services or level of service to operate the project.

In assessing the stability, reliability, and availability of proposed sources of local financing for purposes of subsection (d)(2)(A)(v) or (e)(2)(A)(v), the Secretary shall consider—

(A) the reliability of the forecasting methods used to estimate costs and revenues made by the recipient and the contractors to the recipient;

(B) existing grant commitments;

(D) any debt obligation that exists, or is proposed by the recipient, for the proposed project or other public transportation purpose;

(E) the extent to which the project has a local financial commitment that exceeds the required non-Government share of the cost of the project; and

(F) private contributions to the project, including cost-effective project delivery, management or transfer of project risks, expedited project schedule, financial partnering, and other public-private partnership strategies.

A new fixed guideway capital project or core capacity improvement project proposed to be carried out using a grant under this section may not advance from the project development phase to the engineering phase, or from the engineering phase to the construction phase, unless the Secretary determines that—

(A) the project meets the applicable requirements under this section; and

(B) there is a reasonable likelihood that the project will continue to meet the requirements under this section.

In making a determination under paragraph (1), the Secretary shall evaluate and rate a project as a whole on a 5-point scale (high, medium-high, medium, medium-low, or low) based on—

(A) Overall rating.—In making a determination under paragraph (1), the Secretary shall evaluate and rate a project as a whole on a 5-point scale (high, medium-high, medium, medium-low, or low) based on— (i) in the case of a new fixed guideway capital project, the project justification criteria under subsection (d)(2)(A)(iii), and the degree of local financial commitment; and (ii) in the case of a core capacity improvement project, the capacity needs of the corridor, the project justification criteria under subsection (e)(2)(A)(iv), and the degree of local financial commitment.

(B) Individual ratings for each criterion.—In rating a project under this paragraph, the Secretary shall— (i) provide, in addition to the overall project rating under subparagraph (A), individual ratings for each of the criteria established under subsection (d)(2)(A)(iii) or (e)(2)(A)(iv), as applicable; and (ii) give comparable, but not necessarily equal, numerical weight to each of the criteria established under subsections (d)(2)(A)(iii) or (e)(2)(A)(iv), as applicable, in calculating the overall project rating under clause (i).

(C) Medium rating not required.— The Secretary shall not require that any single project justification criterion meet or exceed a “medium” rating in order to advance the project from one phase to another.

The Secretary shall, to the maximum extent practicable, develop and use special warrants for making a project justification determination under subsection (d)(2) or (e)(2), as applicable, for a project proposed to be funded using a grant under this section, if—

(A) the share of the cost of the project to be provided under this section does not exceed— (i) $100,000,000; or (ii) 50 percent of the total cost of the project;

(B) the applicant requests the use of the warrants;

(D) the applicant meets any other requirements that the Secretary considers appropriate to carry out this subsection.

(4) Letters of intent and early systems work agreements.— In order to expedite a project under this subsection, the Secretary shall, to the maximum extent practicable, issue letters of intent and enter into early systems work agreements upon issuance of a record of decision for projects that receive an overall project rating of medium or better.

The Secretary shall issue policy guidance regarding the review and evaluation process and criteria—

(A) not later than 180 days after the date of enactment of the Federal Public Transportation Act of 2012; and

(B) each time the Secretary makes significant changes to the process and criteria, but not less frequently than once every 2 years.

Not later than 1 year after the date of enactment of the Federal Public Transportation Act of 2012, the Secretary shall issue rules establishing an evaluation and rating process for—

(A) new fixed guideway capital projects that is based on the results of project justification, policies and land use patterns that promote public transportation, and local financial commitment, as required under this subsection; and

(B) core capacity improvement projects that is based on the results of the capacity needs of the corridor, project justification, and local financial commitment.

(7) Applicability.— This subsection shall not apply to a project for which the Secretary issued a letter of intent, entered into a full funding grant agreement, or entered into a project construction agreement before the date of enactment of the Federal Public Transportation Act of 2012.

A new small starts project shall enter into the project development phase when—

(1) In general.— A small start project shall be subject to the requirements of this subsection.

A new small starts project shall enter into the project development phase when—

(A) Entrance into project development phase.—A new small starts project shall enter into the project development phase when— (i) the applicant— (I) submits a letter to the Secretary describing the project and requesting entry into the project development phase; and (II) initiates activities required to be carried out under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) with respect to the project; and (ii) the Secretary— (I) responds in writing to the applicant within 45 days whether the information provided is sufficient to enter into the project development phase, including, when necessary, a detailed description of any information deemed insufficient; and (II) provides concurrent notice to the Committee on Banking, Housing, and Urban Affairs of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives of whether the small starts project is entering the project development phase.

(B) Activities during project development phase.— Concurrent with the analysis required to be made under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), each applicant shall develop sufficient information to enable the Secretary to make findings of project justification, policies and land use patterns that promote public transportation, and local financial commitment under this subsection.

The Secretary may provide Federal assistance for a small start project under this subsection only if the Secretary determines that the project—

(A) has been adopted as the locally preferred alternative as part of the metropolitan transportation plan required under section 5303;

(B) is based on the results of an analysis of the benefits of the project as set forth in paragraph (4); and

(4) Evaluation of benefits and federal investment.— In making a determination for a small start project under paragraph (3)(B), the Secretary shall analyze, evaluate, and consider the following evaluation criteria for the project (as compared to a no-action alternative): mobility improvements, environmental benefits, congestion relief, economic development effects associated with the project, policies and land use patterns that support public transportation and cost-effectiveness as measured by cost per rider.

(5) Evaluation of local financial commitment.— For purposes of paragraph (3)(C), the Secretary shall require that each proposed local source of capital and operating financing is stable, reliable, and available within the proposed project timetable.

In carrying out paragraphs (4) and (5) for a small start project, the Secretary shall evaluate and rate the project on a 5-point scale (high, medium-high, medium, medium-low, or low) based on an evaluation of the benefits of the project as compared to the Federal assistance to be provided and the degree of local financial commitment, as required under this subsection. In rating the projects, the Secretary shall provide, in addition to the overall project rating, individual ratings for each of the criteria established by this subsection and shall give comparable, but not necessarily equal, numerical weight to the benefits that the project will bring to the community in calculating the overall project rating.

(A) In general.— In carrying out paragraphs (4) and (5) for a small start project, the Secretary shall evaluate and rate the project on a 5-point scale (high, medium-high, medium, medium-low, or low) based on an evaluation of the benefits of the project as compared to the Federal assistance to be provided and the degree of local financial commitment, as required under this subsection. In rating the projects, the Secretary shall provide, in addition to the overall project rating, individual ratings for each of the criteria established by this subsection and shall give comparable, but not necessarily equal, numerical weight to the benefits that the project will bring to the community in calculating the overall project rating.

(B) Optional early rating.— At the request of the project sponsor, the Secretary shall evaluate and rate the project in accordance with paragraphs (4) and (5) and subparagraph (A) of this paragraph upon completion of the analysis required under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).

The Secretary, to the maximum extent practicable, shall provide Federal assistance under this subsection 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.

(A) In general.— The Secretary, to the maximum extent practicable, shall provide Federal assistance under this subsection 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.

(B) Terms of expedited grant agreements.— In executing an expedited grant agreement under this subsection, the Secretary may include in the agreement terms similar to those established under subsection (k)(2).

(C) Notice of proposed grants and expedited grant agreements.— At least 10 days before making a grant award or entering into a grant agreement for a project under this subsection, the Secretary shall notify, in writing, the Committee on Transportation and Infrastructure and the Committee on Appropriations of the House of Representatives and the Committee on Banking, Housing, and Urban Affairs and the Committee on Appropriations of the Senate of the proposed grant or expedited grant agreement, as well as the evaluations and ratings for the project.

A federally funded new fixed guideway capital project or core capacity improvement project in a program of interrelated projects may advance into the engineering phase upon completion of activities required under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), as demonstrated by a record of decision with respect to the project, a finding that the project has no significant impact, or a determination that the project is categorically excluded, only if the Secretary determines that—

(1) Project development phase.— A federally funded project in a program of interrelated projects shall advance through project development as provided in subsection (d), (e), or (h), as applicable.

(A) the project is selected as the locally preferred alternative at the completion of the process required under the National Environmental Policy Act of 1969;

(B) the project is adopted into the metropolitan transportation plan required under section 5303;

(D) the program of interrelated projects, when evaluated as a whole— (i) meets the requirements of subsection (d)(2), subsection (e)(2), or paragraphs (3) and (4) of subsection (h), as applicable, if the program is comprised entirely of— (I) new fixed guideway capital projects; (II) core capacity improvement projects; or (III) small start projects; or (ii) meets the requirements of subsection (d)(2) if the program is comprised of any combination of new fixed guideway capital projects, small start projects, and core capacity improvement projects;

(E) the program of interrelated projects is supported by a program implementation plan demonstrating that construction will begin on each of the projects in the program of interrelated projects within a reasonable time frame; and

(F) the program of interrelated projects is supported by an acceptable degree of local financial commitment, as described in subsection (f) or subsection (h)(5), as applicable.

A project receiving a grant under this section that is part of a program of interrelated projects may not advance—

(A) Project advancement.—A project receiving a grant under this section that is part of a program of interrelated projects may not advance— (i) in the case of a small start project, from the project development phase to the construction phase unless the Secretary determines that the program of interrelated projects meets the applicable requirements of this section and there is a reasonable likelihood that the program will continue to meet such requirements; or (ii) in the case of a new fixed guideway capital project or a core capacity improvement project, from the project development phase to the engineering phase, or from the engineering phase to the construction phase, unless the Secretary determines that the program of interrelated projects meets the applicable requirements of this section and there is a reasonable likelihood that the program will continue to meet such requirements.

(B) Ratings.— (i) Overall rating.— In making a determination under subparagraph (A), the Secretary shall evaluate and rate a program of interrelated projects on a 5-point scale (high, medium-high, medium, medium-low, or low) based on the criteria described in paragraph (2). (ii) Individual rating for each criterion.— In rating a program of interrelated projects, the Secretary shall provide, in addition to the overall program rating, individual ratings for each of the criteria described in paragraph (2) and shall give comparable, but not necessarily equal, numerical weight to each such criterion in calculating the overall program rating. (iii) Medium rating not required.— The Secretary shall not require that any single criterion described in paragraph (2) meet or exceed a “medium” rating in order to advance the program of interrelated projects from one phase to another.

If a program of interrelated projects is not adhering to its schedule, the Secretary may, upon the request of the applicant, grant an extension of time if the applicant submits a reasonable plan that includes—

(A) Review required.— The Secretary shall annually review the program implementation plan required under paragraph (2)(E) to determine whether the program of interrelated projects is adhering to its schedule.

(B) Extension of time.—If a program of interrelated projects is not adhering to its schedule, the Secretary may, upon the request of the applicant, grant an extension of time if the applicant submits a reasonable plan that includes— (i) evidence of continued adequate funding; and (ii) an estimated time frame for completing the program of interrelated projects.

(C) Satisfactory progress required.— If the Secretary determines that a program of interrelated projects is not making satisfactory progress, no Federal funds shall be provided for a project within the program of interrelated projects.

If an applicant does not carry out the program of interrelated projects within a reasonable time, for reasons within the control of the applicant, the applicant shall repay all Federal funds provided for the program, and any reasonable interest and penalty charges that the Secretary may establish.

(A) Repayment required.— If an applicant does not carry out the program of interrelated projects within a reasonable time, for reasons within the control of the applicant, the applicant shall repay all Federal funds provided for the program, and any reasonable interest and penalty charges that the Secretary may establish.

(B) Crediting of funds received.— Any funds received by the Government under this paragraph, other than interest and penalty charges, shall be credited to the appropriation account from which the funds were originally derived.

(6) Non-federal funds.— Any non-Federal funds committed to a project in a program of interrelated projects may be used to meet a non-Government share requirement for any other project in the program of interrelated projects, if the Government share of the cost of each project within the program of interrelated projects does not exceed 80 percent.

(7) Priority.— In making grants under this section, the Secretary may give priority to programs of interrelated projects for which the non-Government share of the cost of the projects included in the programs of interrelated projects exceeds the non-Government share required under subsection (l).

(8) Non-government projects.— Including a project not financed by the Government in a program of interrelated projects does not impose Government requirements that would not otherwise apply to the project.

Subsections (d) and (e) shall not apply to projects for which the Secretary has issued a letter of intent, approved entry into final design, entered into a full funding grant agreement, or entered into a project construction grant agreement before the date of enactment of the Federal Public Transportation Act of 2012.

A full funding grant agreement shall—

The Secretary may issue a letter of intent to an applicant announcing an intention to obligate, for a new fixed guideway capital project or core capacity improvement project, 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 project. When a letter is issued for a capital project under this section, the amount shall be sufficient to complete at least an operable segment.

(A) Amounts intended to be obligated.— The Secretary may issue a letter of intent to an applicant announcing an intention to obligate, for a new fixed guideway capital project or core capacity improvement project, 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 project. When a letter is issued for a capital project under this section, the amount shall be sufficient to complete at least an operable segment.

(B) Treatment.— The issuance of a letter under subparagraph (A) is deemed not to be an obligation under sections 1108(c), 1501, and 1502(a) of title 31 or an administrative commitment.

A full funding grant agreement shall—

(A) In general.— A new fixed guideway capital project or core capacity improvement project shall be carried out through a full funding grant agreement.

(B) Criteria.— The Secretary shall enter into a full funding grant agreement, based on the evaluations and ratings required under subsection (d), (e), or (i), as applicable, with each grantee receiving assistance for a new fixed guideway capital project or core capacity improvement project that has been rated as high, medium-high, or medium, in accordance with subsection (g)(2)(A) or (i)(3)(B), as applicable.

(C) Terms.—A full funding grant agreement shall— (i) establish the terms of participation by the Government in a new fixed guideway capital project or core capacity improvement project; (ii) establish the maximum amount of Federal financial assistance for the project; (iii) include the period of time for completing the project, even if that period extends beyond the period of an authorization; and (iv) make timely and efficient management of the project easier according to the law of the United States.

(D) Special financial rules.— (i) In general.— A full funding grant agreement under this paragraph 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 paragraph, to obligate an additional amount from future available budget authority specified in law. (ii) Statement of contingent commitment.— The agreement shall state that the contingent commitment is not an obligation of the Government. (iii) Interest and other financing costs.— Interest and other financing costs of efficiently carrying out a part of the project within a reasonable time are a cost of carrying out the 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 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 paragraph for a new fixed guideway capital project shall be sufficient to complete at least an operable segment.

(E) Before and after study.— (i) In general.—A full funding grant agreement under this paragraph shall require the applicant to conduct a study that— (I) describes and analyzes the impacts of the new fixed guideway capital project or core capacity improvement project on public transportation services and public transportation ridership; (II) evaluates the consistency of predicted and actual project characteristics and performance; and (III) identifies reasons for differences between predicted and actual outcomes. (ii) Information collection and analysis plan.— (I) Submission of plan.— Applicants seeking a full funding grant agreement under this paragraph shall submit a complete plan for the collection and analysis of information to identify the impacts of the new fixed guideway capital project or core capacity improvement project and the accuracy of the forecasts prepared during the development of the project. Preparation of this plan shall be included in the full funding grant agreement as an eligible activity. (II) Contents of plan.—The plan submitted under subclause (I) shall provide for— (aa) collection of data on the current public transportation system regarding public transportation service levels and ridership patterns, including origins and destinations, access modes, trip purposes, and rider characteristics; (bb) documentation of the predicted scope, service levels, capital costs, operating costs, and ridership of the project; (cc) collection of data on the public transportation system 2 years after the opening of a new fixed guideway capital project or core capacity improvement project, including analogous information on public transportation service levels and ridership patterns and information on the as-built scope, capital, and financing costs of the project; and (dd) analysis of the consistency of predicted project characteristics with actual outcomes.

(F) Collection of data on current system.— To be eligible for a full funding grant agreement under this paragraph, recipients shall have collected data on the current system, according to the plan required under subparagraph (E)(ii), before the beginning of construction of the proposed new fixed guideway capital project or core capacity improvement project. Collection of this data shall be included in the full funding grant agreement as an eligible activity.

The Secretary may enter into an early systems work agreement with an applicant if a record of decision under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) has been issued on the project and the Secretary finds there is reason to believe—

(A) Conditions.—The Secretary may enter into an early systems work agreement with an applicant if a record of decision under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) has been issued on the project and the Secretary finds there is reason to believe— (i) a full funding grant agreement for the project will be made; and (ii) the terms of the work agreement will promote ultimate completion of the project more rapidly and at less cost.

(B) Contents.— (i) In general.— An early systems work agreement under this paragraph obligates budget authority available under this chapter and title 23 and shall provide for reimbursement of preliminary costs of carrying out the project, including land acquisition, timely procurement of system elements for which specifications are decided, and other activities the Secretary decides are appropriate to make efficient, long-term project management easier. (ii) Contingent commitment.— An early systems work agreement may include a commitment, contingent on amounts to be specified in law in advance for commitments under this paragraph, to obligate an additional amount from future available budget authority specified in law. (iii) Period covered.— An early systems work agreement under this paragraph shall cover the period of time the Secretary considers appropriate. The period may extend beyond the period of current authorization. (iv) Interest and other financing costs.— Interest and other financing costs of efficiently carrying out the early systems work agreement within a reasonable time are a cost of carrying out the agreement, except that eligible costs may not be more than the cost of the most favorable financing terms reasonably available for the 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. (v) Failure to carry out project.— If an applicant does not carry out the project for reasons within the control of the applicant, the applicant shall repay all Federal grant funds awarded for the project from all Federal funding sources, for all project activities, facilities, and equipment, plus reasonable interest and penalty charges allowable by law or established by the Secretary in the early systems work agreement. (vi) Crediting of funds received.— Any funds received by the Government under this paragraph, other than interest and penalty charges, shall be credited to the appropriation account from which the funds were originally derived.

The Secretary may enter into full funding grant agreements under this subsection for new fixed guideway capital projects and core capacity improvement projects that contain contingent commitments to incur obligations in such amounts as the Secretary determines are appropriate.

(A) In general.— The Secretary may enter into full funding grant agreements under this subsection for new fixed guideway capital projects and core capacity improvement projects that contain contingent commitments to incur obligations in such amounts as the Secretary determines are appropriate.

(B) Appropriation required.— An obligation may be made under this subsection only when amounts are appropriated for the obligation.

(5) Notification to congress.— At least 30 days before issuing a letter of intent, entering into a full funding grant agreement, or entering into an early systems work agreement under this section, 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 or agreement. The Secretary shall include with the notification a copy of the proposed letter or agreement as well as the evaluations and ratings for the project.

The Secretary may provide a higher grant percentage than requested by the grant recipient if—

Based on engineering studies, studies of economic feasibility, and information on the expected use of equipment or facilities, the Secretary shall estimate the net capital project cost.

(A) Estimation of net capital project cost.— Based on engineering studies, studies of economic feasibility, and information on the expected use of equipment or facilities, the Secretary shall estimate the net capital project cost.

(B) Grants.— (i) Grant for new fixed guideway capital project.— A grant for a new fixed guideway capital project shall not exceed 80 percent of the net capital project cost. (ii) Full funding grant agreement for new fixed guideway capital project.— A full funding grant agreement for a new fixed guideway capital project shall not include a share of more than 60 percent from the funds made available under this section. (iii) Grant for core capacity improvement project.— A grant for a core capacity improvement project shall not exceed 80 percent of the net capital project cost of the incremental cost to increase the capacity in the corridor. (iv) Grant for small start project.— A grant for a small start project shall not exceed 80 percent of the net capital project costs.

(2) Adjustment for completion under budget.— The Secretary may adjust the final net capital project cost of a new fixed guideway capital project or core capacity improvement project evaluated under subsection (d), (e), or (i) to include the cost of eligible activities not included in the originally defined project if the Secretary determines that the originally defined project has been completed at a cost that is significantly below the original estimate.

The Secretary may provide a higher grant percentage than requested by the grant recipient if—

(A) the Secretary determines that the net capital project cost of the project is not more than 10 percent higher than the net capital project cost estimated at the time the project was approved for advancement into the engineering phase; and

(B) the ridership estimated for the project is not less than 90 percent of the ridership estimated for the project at the time the project was approved for advancement into the engineering phase.

The remainder of the net capital project costs shall be provided—

(A) in cash from non-Government sources;

(B) from revenues from the sale of advertising and concessions; or

(5) Limitation on statutory construction.— Nothing in this section shall be construed as authorizing the Secretary to require a non-Federal financial commitment for a project that is more than 20 percent of the net capital project cost.

(6) Special rule for rolling stock costs.— In addition to amounts allowed pursuant to paragraph (1), 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 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 Government is made at the same time.

(7) Limitation on applicability.— This subsection shall not apply to projects for which the Secretary entered into a full funding grant agreement before the date of enactment of the Federal Public Transportation Act of 2012.

For up to three fixed-guideway bus rapid transit projects each fiscal year the Secretary shall—

(A) establish a Government share of at least 80 percent; and

(B) not lower the project’s rating for degree of local financial commitment for purposes of subsections (d)(2)(A)(v) or (h)(3)(C) as a result of the Government share specified in this paragraph.

The Secretary may pay the Government share of the net capital project cost to a State or local governmental authority that carries out any part of a project described in this section without the aid of amounts of the Government and according to all applicable procedures and requirements if—

(A) the State or local governmental authority applies for the payment;

(B) the Secretary approves the payment; and

(C) before the State or local governmental authority carries out the part of the project, the Secretary approves the plans and specifications for the part in the same way as other projects under this section.

The cost of carrying out part of a project includes the amount of interest earned and payable on bonds issued by the State or local governmental authority to the extent proceeds of the bonds are expended in carrying out the part.

(A) In general.— The cost of carrying out part of a project includes the amount of interest earned and payable on bonds issued by the State or local governmental authority to the extent proceeds of the bonds are expended in carrying out the part.

(B) Limitation on amount of interest.— The amount of interest under this paragraph may not be more than the most favorable interest terms reasonably available for the project at the time of borrowing.

(C) Certification.— The applicant shall certify, in a manner satisfactory to the Secretary, that the applicant has shown reasonable diligence in seeking the most favorable financing terms.

An amount made available or appropriated for a new fixed guideway capital project or core capacity improvement project shall remain available to that project for 4 fiscal years, including the fiscal year in which the amount is made available or appropriated. Any amounts that are unobligated to the project at the end of the 4-fiscal-year period may be used by the Secretary for any purpose under this section.

(1) In general.— An amount made available or appropriated for a new fixed guideway capital project or core capacity improvement project shall remain available to that project for 4 fiscal years, including the fiscal year in which the amount is made available or appropriated. Any amounts that are unobligated to the project at the end of the 4-fiscal-year period may be used by the Secretary for any purpose under this section.

(2) Use of deobligated amounts.— An amount available under this section that is deobligated may be used for any purpose under this section.

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) a proposal of allocations of amounts to be available to finance grants for projects under this section among applicants for these amounts;

(B) evaluations and ratings, as required under subsections (d), (e), and (i), for each such project that is in project development, engineering, or has received a full funding grant agreement; and

(C) recommendations of such projects for funding based on the evaluations and ratings and on existing commitments and anticipated funding levels for the next 3 fiscal years based on information currently available to the Secretary.

(2) Reports on before and after studies.— Not later than the first Monday in August of each year, the Secretary shall submit to the committees described in paragraph (1) a report containing a summary of the results of any studies conducted under subsection (k)(2)(E).

The Comptroller General of the United States shall—

(A) conduct a biennial review of— (i) the processes and procedures for evaluating, rating, and recommending new fixed guideway capital projects and core capacity improvement projects; and (ii) the Secretary’s implementation of such processes and procedures; and

(B) report to Congress on the results of such review by May 31 of each year.

For the purposes of calculating the cost effectiveness of a project described in subsection (d) or (e), the Secretary shall not reduce or eliminate the capital costs of art and non-functional landscaping elements from the annualized capital cost calculation.

A project under this subsection shall be evaluated for project justification and local financial commitment under subsections (d), (e), (f), and (h), as applicable to the project, based on—

(1) In general.— The Secretary may make grants for new fixed guideway capital projects and core capacity improvement projects that provide both public transportation and intercity passenger rail service.

(2) Eligible costs.— Eligible costs for a project under this subsection shall be limited to the net capital costs of the public transportation costs attributable to the project based on projected use of the new segment or expanded capacity of the project corridor, not including project elements designed to achieve or maintain a state of good repair, as determined by the Secretary under paragraph (4).

A project under this subsection shall be evaluated for project justification and local financial commitment under subsections (d), (e), (f), and (h), as applicable to the project, based on—

(A) the net capital costs of the public transportation costs attributable to the project as determined under paragraph (4); and

(B) the share of funds dedicated to the project from sources other than this section included in the unified finance plan for the project.

The Secretary shall estimate the net capital costs of a project under this subsection based on—

(A) engineering studies;

(B) studies of economic feasibility;

(D) the public transportation costs attributable to the project.

The Government share shall not exceed 80 percent of the net capital cost attributable to the public transportation costs of a project under this subsection as determined under paragraph (4).

(A) Government share.— The Government share shall not exceed 80 percent of the net capital cost attributable to the public transportation costs of a project under this subsection as determined under paragraph (4).

(B) Non-government share.— The remainder of the net capital cost attributable to the public transportation costs of a project under this subsection shall be provided from an undistributed cash surplus, a replacement or depreciation cash fund or reserve, or new capital.

(Pub. L. 103–272, § 1(d), July 5, 1994, 108 Stat. 800; Pub. L. 104–287, § 5(9), (12), Oct. 11, 1996, 110 Stat. 3389; Pub. L. 102–240, title III, § 3049(a), as added Pub. L. 105–130, § 8, Dec. 1, 1997, 111 Stat. 2559; Pub. L. 105–178, title III, § 3009(a), (c)–(h)(1), (3)(D), (i)–(k), June 9, 1998, 112 Stat. 352–357; Pub. L. 105–206, title IX, § 9009(g), (h)(3), July 22, 1998, 112 Stat. 855, 856; Pub. L. 106–69, title III, § 347, Oct. 9, 1999, 113 Stat. 1024; Pub. L. 106–346, § 101(a) [title III, § 380], Oct. 23, 2000, 114 Stat. 1356, 1356A–42; Pub. L. 106–554, § 1(a)(4) [div. A, § 1101], Dec. 21, 2000, 114 Stat. 2763, 2763A–201; Pub. L. 108–88, § 8(a), Sept. 30, 2003, 117 Stat. 1121; Pub. L. 108–202, § 9(a), Feb. 29, 2004, 118 Stat. 484; Pub. L. 108–224, § 7(a), Apr. 30, 2004, 118 Stat. 632; Pub. L. 108–263, § 7(a), June 30, 2004, 118 Stat. 704; Pub. L. 108–271, § 8(b), July 7, 2004, 118 Stat. 814; Pub. L. 108–280, § 7(a), July 30, 2004, 118 Stat. 882; Pub. L. 108–310, § 8(a), Sept. 30, 2004, 118 Stat. 1154; Pub. L. 109–14, § 7(a), May 31, 2005, 119 Stat. 330; Pub. L. 109–20, § 7(a), July 1, 2005, 119 Stat. 352; Pub. L. 109–35, § 7(a), July 20, 2005, 119 Stat. 386; Pub. L. 109–37, § 7(a), July 22, 2005, 119 Stat. 401; Pub. L. 109–40, § 7(a), July 28, 2005, 119 Stat. 417; Pub. L. 109–59, title III, § 3011(a), Aug. 10, 2005, 119 Stat. 1573; Pub. L. 110–244, title II, § 201(d), June 6, 2008, 122 Stat. 1610; Pub. L. 111–147, title IV, § 433, Mar. 18, 2010, 124 Stat. 88; Pub. L. 111–322, title II, § 2303, Dec. 22, 2010, 124 Stat. 3527; Pub. L. 112–5, title III, § 303, Mar. 4, 2011, 125 Stat. 18; Pub. L. 112–30, title I, § 133, Sept. 16, 2011, 125 Stat. 350; Pub. L. 112–102, title III, § 303, Mar. 30, 2012, 126 Stat. 275; Pub. L. 112–140, title III, § 303, June 29, 2012, 126 Stat. 396; Pub. L. 112–141, div. B, § 20008(a), div. G, title III, § 113003, July 6, 2012, 126 Stat. 656, 984; Pub. L. 114–94, div. A, title III, § 3005(a), Dec. 4, 2015, 129 Stat. 1450.)

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[§ 5308. Repealed. Pub. L. 112–141, div. B, § 20002(a), July 6, 2012, 126 Stat. 622]

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§ 5310. Formula grants for the enhanced mobility of seniors and individuals with disabilities

§ 5309. Fixed guideway capital investment grants

49 U.S.C. § 5309 (N/A)

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§ 5309. Fixed guideway capital investment grants