II 

112TH CONGRESS 

1ST SESSION S. 1230 

To secure public investments in transportation infrastructure. 

IN THE SENATE OF THE UNITED STATES 

JUNE 16, 2011 

Mr. DURBIN introduced the following bill; which was read twice and referred 

to the Committee on Commerce, Science, and Transportation 

A BILL 

To secure public investments in transportation infrastructure. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Protecting Taxpayers 

5 in Transportation Asset Transfers Act’’. 

6 SEC. 2. DEFINITIONS. 

7 In this Act: 

8 (1) ASSET TRANSACTION.—The term ‘‘asset 

9 transaction’’ means— 

10 (A) a concession agreement for a public 

11 transportation asset; or 


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1 (B) a contract for the sale or lease of a 

2 public transportation asset between the State or 

3 local government with jurisdiction over the pub4 lic transportation asset and a private individual 

5 or entity. 

6 (2) CONCESSION AGREEMENT.— 

7 (A) IN GENERAL.—The term ‘‘concession 

8 agreement’’ means an agreement entered into 

9 by a private individual or entity and a State or 

10 local government with jurisdiction over a public 

11 transportation asset to convey to the private in12 dividual or entity the right to manage, operate, 

13 and maintain the public transportation asset for 

14 a specific period of time in exchange for the au15 thorization to impose and collect a toll or other 

16 user fee from a person for each use of the pub17 lic transportation asset during that period. 

18 (B) EXCLUSION.—The term ‘‘concession 

19 agreement’’ does not include an agreement en20 tered into by a State or local government and 

21 a private individual or entity for the construc22 tion of any new public transportation asset. 

23 (3) PUBLIC TRANSPORTATION ASSET.— 

24 (A) IN GENERAL.—The term ‘‘public 

25 transportation asset’’ means a transportation 


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1 facility of any kind that was or is constructed, 

2 maintained, or upgraded before, on, or after the 

3 date of enactment of this Act using Federal 

4 funds— 

5 (i)(I) the fair market value of which is 

6 more than $500,000,000, as determined by 

7 the Secretary; and 

8 (II) that has received any Federal 

9 funding, as of the date on which the deter10 mination is made; 

11 (ii) the fair market value of which is 

12 less than or equal to $500,000,000, as de13 termined by the Secretary; and 

14 (I) that has received $25,000,000 or 

15 more in Federal funding, as of the date on 

16 which the determination is made; or 

17 (iii) in which a significant national 

18 pubic interest (such as interstate com19 merce, homeland security, public health, or 

20 the environment) is at stake, as deter21 mined by the Secretary. 

22 (B) INCLUSIONS.—The term ‘‘public trans23 portation asset’’ includes a transportation facil24 ity described in subparagraph (A) that is— 


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1 (i) a Federal-aid highway (as defined 

2 in section 101 of title 23, United States 

3 Code); 

4 (ii) a highway or mass transit project 

5 constructed using amounts made available 

6 from the Highway Account or Mass Tran7 sit Account, respectively, of the Highway 

8 Trust Fund; 

9 (iii) an air navigation facility (as de10 fined in section 40102(a) of title 49, 

11 United States Code); or 

12 (iv) a train station or multimodal sta13 tion that receives a Federal grant, includ14 ing any grant authorized under the Pas15 senger Rail Investment and Improvement 

16 Act of 2008 (Public Law 110–432; 122 

17 Stat. 4907) or an amendment made by 

18 that Act. 

19 (4) SECRETARY.—The term ‘‘Secretary’’ means 

20 the Secretary of Transportation. 

21 SEC. 3. PROGRAM TO SECURE PUBLIC INVESTMENTS IN 

22 TRANSPORTATION INFRASTRUCTURE. 

23 (a) ESTABLISHMENT.—Not later than 180 days after 

24 the date of enactment of this Act, the Secretary shall esVerDate Mar 15 2010 03:23 Jun 22, 2011 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1230.IS S1230

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1 tablish a program under which a Federal lien shall be at2 tached to each public transportation asset. 

3 (b) PROHIBITION ON SALES AND LEASES.— 

4 (1) IN GENERAL.—A public transportation 

5 asset to which a lien is attached under subsection 

6 (a) may not be the subject of any asset transaction 

7 unless— 

8 (A) the lien is released in accordance with 

9 paragraph (2); 

10 (B)(i) the private individual or entity seek11 ing the asset transaction enters into an agree12 ment with the Secretary described in paragraph 

13 (3)(A)(i); and 

14 (ii) the State or local government or other 

15 public sponsor seeking the asset transaction en16 ters into an agreement with the Secretary de17 scribed in paragraph (3)(A)(ii); 

18 (C) the Secretary publishes a disclosure in 

19 accordance with paragraph (4); and 

20 (D) the State or local government seeking 

21 the asset transaction provides for public notice 

22 and an opportunity to comment on the proposed 

23 asset transaction. 

24 (2) RELEASE OF LIENS.— 


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1 (A) IN GENERAL.—A lien on a public 

2 transportation asset described in paragraph (1) 

3 may be released only if— 

4 (i) the State or local government or 

5 other public sponsor seeking the asset 

6 transaction for the public transportation 

7 asset pays to the Secretary an amount de8 termined by the Secretary under subpara9 graph (B); and 

10 (ii) the Secretary certifies that the re11 quired agreements described in paragraph 

12 (3) have been signed, and the terms of the 

13 agreements incorporated into the terms of 

14 the asset transaction, for the public trans15 portation asset. 

16 (B) DETERMINATION OF REPAYMENT

17 AMOUNT.—The Secretary shall determine the 

18 amount that is required to be paid for the re19 lease of a Federal lien on a public transpor20 tation asset under this paragraph, taking into 

21 account, at a minimum— 

22 (i) the total amount of Federal funds 

23 that have been expended to construct, 

24 maintain, or upgrade the public transpor25 tation asset; 


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1 (ii) the amount of Federal funding re2 ceived by a State or local government 

3 based on inclusion of the public transpor4 tation asset in calculations using Federal 

5 funding formulas or for Federal block 

6 grants; 

7 (iii) the reasonable depreciation of the 

8 public transportation asset, including the 

9 amount of Federal funds described in 

10 clause (i) that may be offset by that depre11 ciation; and 

12 (iv) the loss of Federal tax revenue 

13 from bonds relating to, and the tax con14 sequences of depreciation of, the public 

15 transportation asset. 

16 (3) AGREEMENTS.— 

17 (A) IN GENERAL.—As a condition of any 

18 new or renewed asset transaction for a public 

19 transportation asset— 

20 (i) the private individual or entity 

21 seeking the asset transaction shall enter 

22 into an agreement with the Secretary, 

23 which shall be incorporated into the terms 

24 of the asset transaction, under which the 

25 private individual or entity agrees— 


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1 (I) to disclose and eliminate any 

2 conflict of interest involving any party 

3 to the agreement; 

4 (II)(aa) to adequately maintain 

5 the condition and performance of the 

6 public transportation asset during the 

7 term of the asset transaction; and 

8 (bb) on the end of the term of 

9 the asset transaction, to return the 

10 public transportation asset to the ap11 plicable State or local government in a 

12 state of good repair; 

13 (III) to disclose an estimated 

14 amount of tax benefits and financing 

15 transactions over the life of the lease 

16 resulting from the lease or sale of the 

17 public transportation asset; 

18 (IV) to disclose anticipated 

19 changes in the workforce and wages, 

20 benefits, or rules over the life of the 

21 lease and an estimate of the amount 

22 of savings from those changes; and 

23 (V) to provide an estimate of the 

24 revenue the transportation asset will 


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1 produce for the private entity during 

2 the lease or sale period; and 

3 (ii) the State or local government or 

4 other public sponsor seeking the asset 

5 transaction for the public transportation 

6 asset shall enter into an agreement with 

7 the Secretary, which shall be incorporated 

8 into the terms of the asset transaction, 

9 under which the State or local government 

10 or other public sponsor agrees— 

11 (I) to pay to the Secretary the 

12 amount determined by the Secretary 

13 under paragraph (2)(B); 

14 (II) to conduct an assessment of 

15 whether, and provide justification 

16 that, the asset transaction with the 

17 private entity would represent a better 

18 public and financial benefit than a 

19 similar transaction using public fund20 ing or with a public (as opposed to 

21 private) entity, including an assess22 ment of— 

23 (aa) the loss of toll revenues 

24 and other user fees relating to 


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1 the public transportation asset; 

2 and 

3 (bb) any impacts on other 

4 public transportation assets in 

5 the vicinity of the public trans6 portation asset covered by the 

7 asset transaction; 

8 (III) that, if the private indi9 vidual or entity enters into bank10 ruptcy, becomes insolvent, or fails to 

11 comply with all terms and conditions 

12 of the asset transaction— 

13 (aa) the asset transaction 

14 shall immediately terminate; and 

15 (bb) the interest in the pub16 lic transportation asset conveyed 

17 by the asset transaction will im18 mediately revert to the public 

19 sponsor; 

20 (IV) to provide an estimate of all 

21 increased tolls and other user fees 

22 that may be charged to persons using 

23 the public transportation asset during 

24 the term of the asset transaction; 


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1 (V) to disclose any plans the 

2 State or local government seeking the 

3 asset transaction has for up-front 

4 payments or concessions from the pri5 vate individual or entity seeking the 

6 asset transaction; 

7 (VI) that the Federal Govern8 ment and the applicable State and 

9 local governments will retain respec10 tive authority and control over deci11 sions regarding transportation plan12 ning and management; and 

13 (VII) to prominently post or dis14 play the agreement on the website of 

15 the local government or public spon16 sor. 

17 (B) TERM.—An agreement under this 

18 paragraph shall not exceed a reasonable term, 

19 as determined by the Secretary, in consultation 

20 with the relevant State or local government. 

21 (4) PUBLICATION OF DISCLOSURE.—Not later 

22 than 90 days before the date on which an asset 

23 transaction covering a public transportation asset 

24 takes effect, the Secretary shall publish in the Fed25 eral Register a notice that contains— 


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1 (A) a copy of all agreements relating to the 

2 asset transaction between the Secretary and the 

3 public and private sponsors involved; 

4 (B) a description of the total amount of 

5 Federal funds that have been expended as of 

6 the date of publication of the notice to con7 struct, maintain, or upgrade the public trans8 portation asset; 

9 (C) the determination of the repayment 

10 amount under paragraph (2)(B) for the public 

11 transportation asset; 

12 (D) the amount of Federal funding re13 ceived by a State or local government based on 

14 inclusion of the public transportation asset in 

15 calculations using Federal funding formulas or 

16 for Federal block grants; and 

17 (E) a certification that the asset trans18 action will not adversely impact the national 

19 public interest of the United States (including 

20 the interstate commerce, homeland security, 

21 public health, and environment of the United 

22 States). 

23 (5) RENEWAL OF ASSET TRANSACTION.—An 

24 asset transaction that expires or terminates may be 

25 renewed only if— 


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1 (A) the Secretary— 

2 (i) calculates a new repayment 

3 amount under paragraph (2)(B) required 

4 for renewal, as the Secretary determines to 

5 be appropriate; 

6 (ii) takes into consideration the im7 pact of a renewed agreement on nearby 

8 public transportation assets; and 

9 (iii) publishes a new disclosure for the 

10 renewed agreement in accordance with 

11 paragraph (4); and 

12 (B) the State or local government seeking 

13 to renew the asset transaction— 

14 (i) provides for public notice and an 

15 opportunity to comment on the proposed 

16 renewal; 

17 (ii) pays to the Secretary the new 

18 amount calculated by the Secretary pursu19 ant to subparagraph (A)(i); and 

20 (iii) enters into a new agreement in 

21 accordance with paragraph (3) for the re22 newal. 

23 (c) AMTRAK.— 

24 (1) IN GENERAL.—Subject to paragraph (2), 

25 the Secretary may permit a private individual or enVerDate Mar 15 2010 03:23 Jun 22, 2011 Jkt 099200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\S1230.IS S1230

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1 tity to enter into an asset transaction covering all or 

2 any portion of the facilities and equipment of the 

3 National Railroad Passenger Corporation (referred 

4 to in this subsection as ‘‘Amtrak’’). 

5 (2) CONDITIONS.—A private individual or enti6 ty that seeks to enter into an asset transaction de7 scribed in paragraph (1) shall agree— 

8 (A) to enter into an agreement described 

9 in subsection (b)(3) with the Secretary covering 

10 the asset transaction; and 

11 (B) to pay to the Secretary an amount 

12 equal to the amount of Federal funds provided 

13 for Amtrak during the period of fiscal year 

14 1971 through the fiscal year in which an agree15 ment described in subsection (b)(3) covering the 

16 asset transaction is entered into, as adjusted 

17 by, as determined by the Secretary— 

18 (i) the reasonable depreciation of the 

19 portion of Amtrak facilities and equipment 

20 covered by the agreement, including that 

21 amount of Federal funds provided for Am22 trak that may be offset by that deprecia23 tion; 

24 (ii) the amount of Federal funding re25 ceived by a State or local government to 


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1 upgrade any capital facilities owned or op2 erated by Amtrak to facilitate passenger 

3 rail service; and 

4 (iii) the loss of Federal tax revenue 

5 from bonds, Federal financing, or any tax 

6 advantages granted to Amtrak since fiscal 

7 year 1971, including financing and bond8 ing covered by or provided under the Tax9 payer Relief Act of 1997 (Public Law 105– 

10 34; 111 Stat. 788) or an amendment made 

11 by that Act. 

12 (3) TERM, DISCLOSURE, AND RENEWAL.—Para13 graphs (3)(B), (4), and (5) of subsection (b) shall 

14 apply to an asset transaction entered into under this 

15 subsection. 

16 (d) USE OF FUNDS BY SECRETARY.—Funds received 

17 by the Secretary as a payment under paragraph (2)(A)(i) 

18 or (5)(B)(ii) of subsection (b) or subsection (c)(2)(B) shall 

19 be available to and used by the Secretary, without further 

20 appropriation and to remain available until expended, for 

21 transportation projects and activities in the same trans22 portation mode as the mode of the public transportation 

23 asset for which the payment was received. 

24 (e) REGULATIONS.—Not later than 180 days after 

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1 mulgate such regulations as are necessary to implement 

2 this Act. 

3 (f) REPORT TO CONGRESS.—Not later than 180 days 

4 after the date of enactment of this Act, and annually 

5 thereafter, the Secretary shall submit to Congress and 

6 publish in the Federal Register a report that describes 

7 each public transportation asset that is the subject of an 

8 asset transaction during the year covered by the report, 

9 including the total amount of Federal funds that were re10 ceived by a State or local government to construct, main11 tain, or upgrade the public transportation asset as of the 

12 date of submission of the report. 

13 (g) AUTHORIZATION OF APPROPRIATIONS.—There 

14 are authorized to be appropriated to carry out this Act 

15 such sums as are necessary. 

16 SEC. 4. BUDGETARY EFFECTS. 

17 The budgetary effects of this Act, for the purpose of 

18 complying with the Statutory Pay-As-You-Go Act of 2010, 

19 shall be determined by reference to the latest statement 

20 titled ‘‘Budgetary Effects of PAYGO Legislation’’ for this 

21 Act, submitted for printing in the Congressional Record 

22 by the Chairman of the Senate Budget Committee, pro23 vided that such statement has been submitted prior to the 

24 vote on passage. 

Æ 


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