II 

112TH CONGRESS 

1ST SESSION S. 936 

To establish the American Infrastructure Investment Fund and other activities to facilitate investments in infrastructure projects that significantly 

enhance the economic competitiveness of the United States by improving 

economic output, productivity, or competitive commercial advantage, and 

for other purposes. 

IN THE SENATE OF THE UNITED STATES 

MAY 10, 2011 

Mr. ROCKEFELLER (for himself and Mr. LAUTENBERG) introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation 

A BILL 

To establish the American Infrastructure Investment Fund 

and other activities to facilitate investments in infrastructure projects that significantly enhance the economic 

competitiveness of the United States by improving economic output, productivity, or competitive commercial 

advantage, and for other purposes. 

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; TABLE OF CONTENTS. 

4 (a) SHORT TITLE.—This Act may be cited as the 

5 ‘‘American Infrastructure Investment Fund Act of 2011’’. 


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1 (b) TABLE OF CONTENTS.—The table of contents for 

2 this Act is as follows: 

Sec. 1. Short title; table of contents. 

Sec. 2. American Infrastructure Investment Fund. 

Sec. 3. National infrastructure investment grants. 

Sec. 4. Multi-modal transportation funding. 

3 SEC. 2. AMERICAN INFRASTRUCTURE INVESTMENT FUND. 

4 (a) ESTABLISHMENT OF FUND.—Chapter 3 of title 

5 49, United States Code, is amended— 

6 (1) in the table of sections, by adding at the 

7 end the following: 

‘‘SUBCHAPTER IV—AMERICAN INFRASTRUCTURE INVESTMENT FUND

‘‘361. Definitions. 

‘‘362. Establishment of Fund. 

‘‘363. Organizational structure and duties. 

‘‘364. Fund authorities and assistance. 

‘‘365. Studies and reports.’’; 

8 and 

9 (2) by adding at the end the following: 

10 ‘‘SUBCHAPTER IV—AMERICAN 

11 INFRASTRUCTURE INVESTMENT FUND 

12 ‘‘§ 361. Definitions 

13 ‘‘In this subchapter: 

14 ‘‘(1) BOARD.—The term ‘Board’ means the 

15 Board of Directors of the Fund appointed pursuant 

16 to section 363(b). 

17 ‘‘(2) DIRECT LOAN.—The term ‘direct loan’ has 

18 the meaning given the term under section 502(1) of 

19 the Congressional Budget Act of 1974 (2 U.S.C. 

20 661a(1)). 


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1 ‘‘(3) ECONOMIC COMPETITIVENESS.—The term 

2 ‘economic competitiveness’ means the ability of the 

3 economy to more efficiently produce goods and de4 liver services, including— 

5 ‘‘(A) reductions in travel time of goods and 

6 people, including reductions in average delay or 

7 the uncertainty of travel time; and 

8 ‘‘(B) net benefits to society through eco9 nomic benefits attributable to improving the 

10 spatial clustering of economic activity. 

11 ‘‘(4) ELIGIBLE PROJECT.—The term ‘eligible 

12 project’ means a capital project that— 

13 ‘‘(A) advances the objectives of this sub14 chapter; 

15 ‘‘(B) is comprised of activities included in 

16 a regional, State, or national plan, either at the 

17 time of submission of the application or before 

18 the obligation of funds from the Fund; 

19 ‘‘(C) has eligible project costs related to a 

20 single project, or has aggregate eligible project 

21 costs related to a program of projects that are 

22 coordinated to achieve a unified improvement; 

23 and 

24 ‘‘(D) is a transportation-related project. 


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1 ‘‘(5) ELIGIBLE FUNDING RECIPIENT.—The 

2 term ‘eligible funding recipient’— 

3 ‘‘(A) means an entity that has received a 

4 financing award from the Fund; 

5 ‘‘(B) shall be— 

6 ‘‘(i) a non-Federal governmental enti7 ty, agency, or instrumentality; or 

8 ‘‘(ii) a nongovernmental entity, such 

9 as a corporation, partnership, joint ven10 ture, or other instrumentality, that seeks 

11 funding for an eligible project; and 

12 ‘‘(C) shall have a non-Federal govern13 mental cosponsor of the project if it is a non14 governmental entity. 

15 ‘‘(6) ELIGIBLE PROJECT COST.—The term ‘eli16 gible project cost’— 

17 ‘‘(A) includes costs associated with devel18 opment phase planning and design activities, 

19 construction, acquisition, rehabilitation, envi20 ronmental remediation, interest expense during 

21 construction or reconstruction, and reasonable 

22 required reserves; and 

23 ‘‘(B) excludes operating costs, research 

24 and development costs, and any other costs not 


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1 otherwise specifically provided for in subpara2 graph (A). 

3 ‘‘(7) EXECUTIVE DIRECTOR.—The term ‘Execu4 tive Director’ means the Executive Director of the 

5 Fund appointed pursuant to section 363(a)(1). 

6 ‘‘(8) FUND.—The term ‘Fund’ means the 

7 American Infrastructure Investment Fund of the 

8 Department of Transportation established under sec9 tion 362. 

10 ‘‘(9) INVESTMENT PLAN.—The term ‘Invest11 ment Plan’ means a written mutual agreement be12 tween the Fund and an applicant that outlines the 

13 prospective terms of financial assistance to be in14 vested by the Fund. 

15 ‘‘(10) LINE OF CREDIT.—The term ‘line of 

16 credit’ means an agreement entered into between the 

17 Fund and an eligible funding recipient to provide a 

18 direct loan at a future date upon the occurrence of 

19 certain events. 

20 ‘‘(11) LOAN GUARANTEE.—The term ‘loan 

21 guarantee’ has the meaning given the term under 

22 section 502(3) of the Congressional Budget Act of 

23 1974 (2 U.S.C. 661a(3)). 

24 ‘‘(12) OPERATING GUIDANCE.—The term ‘Op25 erating Guidance’ means the detailed description of 


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1 the Fund’s operating policies and procedures that 

2 has been published in accordance with this sub3 chapter. 

4 ‘‘(13) QUALIFIED APPLICATION.—The term 

5 ‘Qualified Application’ means an application that the 

6 Executive Director has certified to have met eligi7 bility and qualification standards under this sub8 chapter. 

9 ‘‘(14) RURAL.—The term ‘rural’ means all pop10 ulation and territory that are not within an Urban11 ized Area (as such term is defined in the most re12 cent decennial United States census). 

13 ‘‘(15) SECRETARY.—Except as otherwise speci14 fied, the term ‘Secretary’ means the Secretary of 

15 Transportation. 

16 ‘‘(16) TRANSPORTATION-RELATED PROJECT.— 

17 The term ‘transportation-related project’ means a 

18 project that is part of, or related to, a transportation 

19 improvement, including projects related to the con20 struction or improvement of— 

21 ‘‘(A) a passenger or freight rail line; 

22 ‘‘(B) a highway; 

23 ‘‘(C) a bridge; 

24 ‘‘(D) an airport; 

25 ‘‘(E) an air traffic control system; 


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1 ‘‘(F) a port or marine facility; 

2 ‘‘(G) an inland waterway; 

3 ‘‘(H) a transmission or distribution pipe4 line; 

5 ‘‘(I) public transportation facilities or sys6 tems; 

7 ‘‘(J) intercity passenger bus or passenger 

8 rail facilities or equipment; or 

9 ‘‘(K) freight rail facilities or equipment. 

10 ‘‘§ 362. Establishment of Fund 

11 ‘‘(a) ESTABLISHMENT.—There is established in the 

12 Department of Transportation an entity to be known as 

13 the ‘American Infrastructure Investment Fund’. 

14 ‘‘(b) OBJECTIVES.— 

15 ‘‘(1) PRIMARY OBJECTIVE.—The Fund’s pri16 mary objective shall be to invest in infrastructure 

17 projects that provide measurable improvements to 

18 the economic competitiveness of all or part of the 

19 United States by increasing or otherwise improving 

20 economic output, productivity, or competitive com21 mercial advantage. 

22 ‘‘(2) SECONDARY OBJECTIVES.—The Fund’s 

23 secondary objectives shall be— 

24 ‘‘(A) to provide funding for projects that 

25 face significant funding barriers due to probVerDate Mar 15 2010 00:30 May 12, 2011 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S936.IS S936

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1 lems associated with the need to combine re2 sources across multiple jurisdictions or modes 

3 of transportation; 

4 ‘‘(B) to improve the efficiency or through5 put of a national or regional transportation net6 work by— 

7 ‘‘(i) improving the integration between 

8 networks; or 

9 ‘‘(ii) improving the condition, per10 formance, or long-term cost structure of 

11 existing infrastructure; 

12 ‘‘(C) to improve the safety of transpor13 tation facilities and systems, as measured by 

14 the reduction in risk of transportation-related 

15 crashes, injuries, or deaths; and 

16 ‘‘(D) to improve the environmental sus17 tainability of a national or regional transpor18 tation network, as measured by— 

19 ‘‘(i) improvement in energy efficiency; 

20 ‘‘(ii) reduction in greenhouse gas and 

21 other harmful emissions; 

22 ‘‘(iii) conservation of natural re23 sources; 

24 ‘‘(iv) improvement in water quality; 


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1 ‘‘(v) improvement in infrastructure re2 silience to environmental hazards and nat3 ural disasters; and 

4 ‘‘(vi) other beneficial environmental 

5 impacts. 

6 ‘‘(c) STRATEGY.— 

7 ‘‘(1) IN GENERAL.—The Fund shall advance 

8 the objectives set forth in subsection (b) by pro9 viding financial assistance for individual projects or 

10 programs of related projects identified in State, re11 gional, or national plans and designed to signifi12 cantly improve national or regional economic com13 petitiveness. 

14 ‘‘(2) PROJECT PORTFOLIO.—The Fund shall— 

15 ‘‘(A) target projects or programs of related 

16 projects with a demonstrated difficulty in ob17 taining complete financing through other avail18 able public or private sources of funds, for rea19 sons including project complexity, modes, or 

20 other comparable transactional barriers; 

21 ‘‘(B) seek to identify appropriate Invest22 ment Plans for selected projects and programs 

23 of projects; and 

24 ‘‘(C) use Fund resources to build a port25 folio of transformational investments that— 


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1 ‘‘(i) promotes greater efficiency in the 

2 movement of freight or the provision of 

3 services; 

4 ‘‘(ii) promotes greater efficiency in the 

5 movement of people; 

6 ‘‘(iii) integrates multiple transpor7 tation modes in the movement of pas8 sengers or freight; 

9 ‘‘(iv) promotes the use of innovation 

10 and best practices in the planning, design, 

11 development, and delivery of projects, in12 cluding practices that promote perform13 ance-based decision making to achieve na14 tional, State, or regional objectives; 

15 ‘‘(v) promotes cross-jurisdictional in16 frastructure planning and coinvestment 

17 among a broad range of participants, in18 cluding States, tribal governments, munici19 palities, and public and private investors; 

20 and 

21 ‘‘(vi) integrates transportation infra22 structure investment planning, such as re23 gional transportation plans, with land-use 

24 economic development and other infra25 structure Investment Plans. 


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1 ‘‘(3) INVESTMENT PROSPECTUS.— 

2 ‘‘(A) PUBLICATION.—Not later than 1 

3 year after the date of the enactment of the 

4 American Infrastructure Investment Fund Act 

5 of 2011, the Fund shall publish a detailed de6 scription of its strategy in an Investment Pro7 spectus that— 

8 ‘‘(i) specifies what will be considered 

9 significant to the economic competitiveness 

10 of all or part of the United States in a 

11 manner consistent with the primary objec12 tive set forth in subsection (b)(1); 

13 ‘‘(ii) specifies the priorities and stra14 tegic focus of the Fund in— 

15 ‘‘(I) reaching the objectives set 

16 forth in subsection (b); and 

17 ‘‘(II) carrying out the Fund 

18 strategy described in this subsection; 

19 ‘‘(iii) describes in detail— 

20 ‘‘(I) the framework and method21 ology for calculating the qualification 

22 score assigned under section 

23 364(f)(3); 

24 ‘‘(II) the data to be requested 

25 from applicants; and 


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1 ‘‘(III) the formula to be applied 

2 to such data to calculate the qualifica3 tion score; 

4 ‘‘(iv) describes how selection criteria 

5 will be applied by the Fund to determine 

6 the competitiveness of an application and 

7 its qualification score relative to other cur8 rent applications and previously funded ap9 plications; and 

10 ‘‘(v) describes how the qualification 

11 score methodology and project selection 

12 framework are consistent with maximizing 

13 the Fund’s goals in urban and rural areas. 

14 ‘‘(B) UPDATES.—Not later than 2 years 

15 after the original publication of the Investment 

16 Prospectus, and biennially thereafter, the Fund 

17 shall publish an updated Investment Pro18 spectus. 

19 ‘‘(C) APPROVAL.—The Fund may not pub20 lish the Investment Prospectus or any subse21 quent updates under subparagraph (B) until 

22 the Board has approved the Investment Pro23 spectus by a majority vote. 

24 ‘‘(4) OPERATING GUIDANCE.— 


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1 ‘‘(A) PUBLICATION.—Not later than 1 

2 year after the date of the enactment of the 

3 American Infrastructure Investment Fund Act 

4 of 2011, the Fund shall establish and publish 

5 its Operating Guidance for the management of 

6 the Fund, which shall— 

7 ‘‘(i) establish general operating proce8 dures to be followed by the Fund in car9 rying out its authorities under this sub10 chapter; 

11 ‘‘(ii) establish criteria, requirements, 

12 and standards regarding the provisions of 

13 various forms of assistance authorized 

14 under this subchapter, including the var15 ious forms and terms of credit assistance 

16 that are consistent with the requirements 

17 under this subchapter; 

18 ‘‘(iii) establish an application and 

19 award process for Planning and Feasibility 

20 Loans in accordance with the provisions 

21 under this subchapter; 

22 ‘‘(iv) establish disclosure and applica23 tion procedures for nominating or other24 wise proposing applications for project as25 sistance, either solicited or unsolicited, that 


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1 are consistent with the requirements under 

2 this subchapter; 

3 ‘‘(v) describe in detail the form and 

4 timing of data and other information re5 quired of applicants in conjunction with 

6 consideration of an application for finan7 cial assistance under this subchapter; and 

8 ‘‘(vi) establish a schedule of regular 

9 time intervals for the submission for con10 sideration of sets of 1 or more Investment 

11 Plans to the Board. 

12 ‘‘(B) REVIEW AND UPDATE.—The Fund 

13 shall periodically review, and may update, the 

14 Operating Guidance published under subpara15 graph (A). 

16 ‘‘(5) RULEMAKING.—Paragraphs (3) and (4) 

17 shall be carried out in accordance with the rule18 making procedures set forth in section 553 of title 

19 5, United States Code. 

20 ‘‘§ 363. Organizational structure and duties 

21 ‘‘(a) EXECUTIVE DIRECTOR.— 

22 ‘‘(1) APPOINTMENT; AUTHORITY.—The Presi23 dent shall appoint, by and with the advice and con24 sent of the Senate, an Executive Director, who shall 

25 be the chief executive officer of the Fund, and shall 


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1 have such executive functions, powers, and duties as 

2 set forth in this subchapter or prescribed by the 

3 Board. 

4 ‘‘(2) SUPERVISION.—The Executive Director 

5 shall be subject to the supervision and direction of 

6 the Secretary of Transportation, consistent with the 

7 Executive Director’s duties under this subchapter 

8 and other requirements set forth in the Operating 

9 Guidance referred to in section 362(c)(4). 

10 ‘‘(3) QUALIFICATIONS.—The Executive Director 

11 shall have demonstrated expertise in at least 2 of the 

12 following 3 areas: 

13 ‘‘(A) Economic analysis. 

14 ‘‘(B) Project, public, or corporate finance. 

15 ‘‘(C) Organizational management. 

16 ‘‘(4) TERM OF SERVICE; VACANCY.—The Exec17 utive Director shall serve a 5-year term, which may 

18 be renewed in accordance with paragraph (1). A va19 cancy in the position of Executive Director shall be 

20 filled as expeditiously as possible in the manner in 

21 which the original appointment was made. 

22 ‘‘(5) DUTIES.—In addition to the other activi23 ties required to carry out the authorities and pur24 poses of the Fund under this subchapter, the Execu25 tive Director shall— 


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1 ‘‘(A) be responsible for the day-to-day op2 erations of the Fund; 

3 ‘‘(B) establish and approve the Operating 

4 Guidance in accordance with section 362(c)(4); 

5 ‘‘(C) hire and supervise a staff of qualified 

6 transportation infrastructure planning profes7 sionals that will— 

8 ‘‘(i) establish and maintain a project 

9 application origination capability at the 

10 Fund; 

11 ‘‘(ii) conduct a nationwide search for 

12 projects that promote the strategy set 

13 forth in the most recently published Invest14 ment Prospectus; and 

15 ‘‘(iii) solicit applications from eligible 

16 funding recipients to finance projects de17 scribed in clause (ii); 

18 ‘‘(D) hire and supervise a staff of qualified 

19 economics professionals that will— 

20 ‘‘(i) establish and maintain an anal21 ysis capability at the Fund; 

22 ‘‘(ii) collect and analyze application 

23 data; and 


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1 ‘‘(iii) report to the Executive Director 

2 on qualification scores, measures of uncer3 tainty, and other analyses of applications; 

4 ‘‘(E) hire and supervise a staff of qualified 

5 project finance professionals that will— 

6 ‘‘(i) establish and maintain an invest7 ment planning process capability at the 

8 Fund; 

9 ‘‘(ii) review qualified applications; and 

10 ‘‘(iii) structure Investment Plans; and 

11 ‘‘(F) hire and supervise a staff of qualified 

12 project management professionals that will— 

13 ‘‘(i) establish and maintain a technical 

14 assistance capability at the Fund; 

15 ‘‘(ii) assist those entities receiving 

16 funding from the Fund in the successful 

17 execution of their Investment Plans; and 

18 ‘‘(iii) otherwise implement the funding 

19 decisions of the Secretary. 

20 ‘‘(b) BOARD OF DIRECTORS.— 

21 ‘‘(1) ESTABLISHMENT.—There is established 

22 within the Fund a deliberative body to be known as 

23 the ‘Board of Directors’. 

24 ‘‘(2) MEMBERSHIP.—The Board shall be com25 posed of 7 members, including— 


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1 ‘‘(A) the Secretary of the Treasury, the 

2 Secretary of Commerce, and the Secretary of 

3 Energy, who shall serve as permanent members; 

4 and 

5 ‘‘(B) 4 executives of the Department of 

6 Transportation appointed by the Secretary, of 

7 whom— 

8 ‘‘(i) not more than 2 shall serve con9 currently as— 

10 ‘‘(I) the Deputy Secretary; 

11 ‘‘(II) the Under Secretary of 

12 Transportation for Policy; 

13 ‘‘(III) the General Counsel; 

14 ‘‘(IV) the Chief Financial Officer; 

15 ‘‘(V) the Assistant Secretary of 

16 Transportation for Policy; or 

17 ‘‘(VI) the Assistant Secretary of 

18 Transportation for Aviation and 

19 International Affairs; and 

20 ‘‘(ii) not more than 2 shall serve for 

21 not longer than 2 years, while concurrently 

22 serving as— 

23 ‘‘(I) the Administrator of the 

24 Federal Aviation Administration; 


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1 ‘‘(II) the Administrator of the 

2 Federal Highway Administration; 

3 ‘‘(III) the Administrator of the 

4 Federal Railroad Administration; 

5 ‘‘(IV) the Administrator of the 

6 Federal Transit Administration; 

7 ‘‘(V) the Administrator of the 

8 Maritime Administration; 

9 ‘‘(VI) the Administrator of the 

10 Pipeline and Hazardous Materials 

11 Safety Administration; or 

12 ‘‘(VII) the Administrator of the 

13 Federal Motor Carrier Safety Admin14 istration. 

15 ‘‘(3) DUTIES.—The Board shall— 

16 ‘‘(A) not later than 180 days after the date 

17 of the enactment of the American Infrastruc18 ture Investment Fund Act of 2011, establish 

19 and approve the Investment Prospectus, in con20 sultation with the Fund Advisory Committee; 

21 ‘‘(B) on each biennial anniversary of its 

22 original publication, update the Investment Pro23 spectus, in consultation with the Fund Advisory 

24 Committee; 


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1 ‘‘(C) review Investment Plans, related ap2 plication materials, and other analyses provided 

3 to the Board by the Executive Director; 

4 ‘‘(D) determine by majority vote whether 

5 or not to recommend Investment Plans sub6 mitted by the Executive Director to the Sec7 retary; and 

8 ‘‘(E) certify reports to Congress and other 

9 publications of the Fund. 

10 ‘‘(4) MAJORITY VOTE REQUIRED.—Each action 

11 or decision by the Board shall be by majority vote 

12 of all members, whether in person or in absentia. 

13 Each member shall be provided a reasonable oppor14 tunity to vote on all matters before the Board. 

15 ‘‘(c) FUND ADVISORY COMMITTEE.— 

16 ‘‘(1) ESTABLISHMENT.—Not later than 180 

17 days after the date of the enactment of the Amer18 ican Infrastructure Investment Fund Act of 2011, 

19 the President shall establish an advisory committee, 

20 to be known as the ‘Fund Advisory Committee’. 

21 ‘‘(2) MEMBERSHIP.— 

22 ‘‘(A) APPOINTMENT.—The President shall 

23 appoint not fewer than 5 people and not more 

24 than 7 people to serve 3-year terms as members 


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1 of the Fund Advisory Committee, including 1 

2 member to serve as Chair of the Committee. 

3 ‘‘(B) QUALIFICATIONS.—Each member 

4 shall have expertise in— 

5 ‘‘(i) economics and economic analysis; 

6 ‘‘(ii) project or fund management; 

7 ‘‘(iii) portfolio or fund management; 

8 ‘‘(iv) organized labor interests; 

9 ‘‘(v) environmental interests; 

10 ‘‘(vi) American business and trade in11 terests; 

12 ‘‘(vii) rural community and economic 

13 development; 

14 ‘‘(viii) metropolitan economic develop15 ment and clustering of economic develop16 ment; 

17 ‘‘(ix) State Department of Transpor18 tation or Metropolitan Planning Organiza19 tion policies and priorities; or 

20 ‘‘(x) other infrastructure planning, re21 development, and development-related 

22 codes and policies. 

23 ‘‘(C) REPRESENTATION.—The President 

24 shall ensure that the membership of the Fund 

25 Advisory Committee— 


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1 ‘‘(i) is bipartisan; 

2 ‘‘(ii) is geographically and economi3 cally balanced; and 

4 ‘‘(iii) is balanced in terms of the func5 tions to be performed by the Fund Advi6 sory Committee. 

7 ‘‘(3) ADVICE.—The Fund Advisory Committee 

8 shall advise the Board and the Secretary with re9 spect to— 

10 ‘‘(A) the alignment of the Investment Pro11 spectus with the primary and secondary objec12 tives, and other elements of the Fund strategy 

13 described in section 362(c); 

14 ‘‘(B) the alignment of the framework and 

15 methodology used to determine qualification 

16 scores and uncertainty estimates with the pri17 mary objective, secondary objectives, and the 

18 Fund strategy; 

19 ‘‘(C) the consistency of the calculation of 

20 qualification scores and uncertainty estimates 

21 with academic standards for analytical rigor 

22 and data quality typically applied to peer-re23 viewed research; 

24 ‘‘(D) the alignment of investment decision 

25 mechanics and outcomes with the Investment 


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1 Prospectus and the requirements under this 

2 subchapter; 

3 ‘‘(E) the integrity and effectiveness of 

4 Fund operations and performance, including 

5 application evaluation processes, Investment 

6 Plan processes and determinations, and the op7 timization of the Fund’s performance as a port8 folio; and 

9 ‘‘(F) prospects for the extension of the 

10 Fund’s activities to nontransportation infra11 structure sectors likely to benefit the United 

12 States, including renewable energy generation, 

13 energy transmission and storage, energy effi14 ciency, drinking water and wastewater systems, 

15 and telecommunications. 

16 ‘‘(4) APPLICABILITY OF FACA.—The Fund Ad17 visory Committee shall be subject to the Federal Ad18 visory Committee Act (5 U.S.C. App.). 

19 ‘‘§ 364. Fund authorities and assistance 

20 ‘‘(a) AGREEMENTS WITH OTHER ORGANIZATIONS.— 

21 The Fund may— 

22 ‘‘(1) enter into an agreement with any organi23 zation within the Department of Transportation to 

24 obtain necessary technical expertise and assistance; 

25 and 


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1 ‘‘(2) may request any Federal agency to detail 

2 employees to the Fund for purposes of carrying out 

3 its duties under this subchapter. 

4 ‘‘(b) FEES FOR SERVICES.— 

5 ‘‘(1) ADMINISTRATIVE FEES.—The Fund may 

6 establish and collect fees from eligible funding recipi7 ents, including application and processing fees and 

8 other fees associated with the costs of loan servicing, 

9 at a level sufficient to cover all or a portion of the 

10 administrative costs to the Federal Government of 

11 providing funding assistance and servicing the credit 

12 instruments entered into under this subchapter. 

13 ‘‘(2) OTHER FEES.—The Fund may establish 

14 and collect fees from eligible funding recipients at a 

15 level sufficient to cover all or a portion of the costs 

16 of expert firms, including counsel in the field of mu17 nicipal and project finance, and financial advisors to 

18 assist with underwriting, credit analysis, or other 

19 independent reviews, as appropriate. 

20 ‘‘(3) LIMITATION.—The Fund may not collect 

21 fees under paragraph (1) or (2) that originate as a 

22 loan or a debt obligation guaranteed by the Federal 

23 Government. 

24 ‘‘(4) AVAILABILITY OF AMOUNTS.—Amounts 

25 collected under paragraphs (1) and (2) shall be 


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1 available to be expended to carry out the duties 

2 under this subchapter. 

3 ‘‘(c) PLANNING AND FEASIBILITY LOANS.— 

4 ‘‘(1) IN GENERAL.—The Fund may provide 

5 loans, which may be forgivable, to eligible funding 

6 recipients to fund activities related to the planning, 

7 preparation, or design of an eligible project proposal, 

8 including costs associated with— 

9 ‘‘(A) planning and formulating optimal 

10 project design; 

11 ‘‘(B) assessing project technical feasibility; 

12 and 

13 ‘‘(C) assessing potential project perform14 ance. 

15 ‘‘(2) LOAN PROGRAM CRITERIA.—In providing 

16 loans under this subsection, the Fund shall give pri17 ority to activities that are likely to lead to projects 

18 that— 

19 ‘‘(A) advance the objectives set forth in 

20 section 362(b); and 

21 ‘‘(B) are consistent with the strategy de22 scribed in section 362(c). 

23 ‘‘(3) FEDERAL SHARE.—The Fund may enter 

24 into a loan agreement with an eligible recipient in 

25 which the Fund agrees to pay up to 100 percent of 


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1 eligible planning and feasibility costs of an eligible 

2 project under this subsection. 

3 ‘‘(4) ELIGIBLE COSTS.—Loan amounts received 

4 under this subsection may be used for— 

5 ‘‘(A) any activity reasonably necessary to 

6 obtain Federal, State, and local permits, li7 censes, and approvals for an eligible project, in8 cluding— 

9 ‘‘(i) concept development and prelimi10 nary design; 

11 ‘‘(ii) economic and environmental 

12 analyses; and 

13 ‘‘(iii) application, licensing, and per14 mit fees. 

15 ‘‘(B) the preparation of financial analyses 

16 and other economic analyses that are reason17 ably necessary to secure funding to implement 

18 an eligible project. 

19 ‘‘(5) ALIGNMENT WITH INVESTMENT PRO20 SPECTUS.—The Fund may not provide a loan for a 

21 project under this subsection unless the application 

22 materials demonstrate that the eligible project is 

23 aligned with the strategy outlined in the Investment 

24 Prospectus. 


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1 ‘‘(6) DESIGNATION FOR RECEIPT OF CERTAIN

2 FUNDS.—If a non-Federal governmental entity, 

3 agency, or instrumentality is carrying out the plan4 ning and feasibility activities, the eligible funding re5 cipient may designate such entity, agency, or instru6 mentality to receive loan amounts for such activities 

7 directly from the Fund. 

8 ‘‘(d) DIRECT LOANS AND LOAN GUARANTEES.— 

9 ‘‘(1) DIRECT LOANS.— 

10 ‘‘(A) AGREEMENTS.—The Fund is author11 ized to make direct loans to eligible funding re12 cipients for eligible projects on such terms and 

13 conditions, and containing such covenants, rep14 resentations, warranties, and requirements, in15 cluding required audits, as the Fund determines 

16 appropriate, in accordance with the provisions 

17 under this subchapter, the Operating Guidance, 

18 and all other statutory and regulatory require19 ments. 

20 ‘‘(B) APPROVED INVESTMENT PLAN.—Di21 rect loans made under this paragraph— 

22 ‘‘(i) may only be used to fund eligible 

23 project costs covered in an Investment 

24 Plan approved by the Secretary; and 


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1 ‘‘(ii) are subject to the terms and con2 ditions of the approved Investment Plan. 

3 ‘‘(C) TERMS, CONDITIONS, AND LIMITA4 TIONS.—Direct loans made under this para5 graph will be on such terms, conditions, and 

6 limitations as the Executive Director may pre7 scribe, except that— 

8 ‘‘(i) the Fund may not provide credit 

9 assistance to any prospective borrower un10 less such assistance— 

11 ‘‘(I) is necessary to alleviate a 

12 credit market imperfection; or 

13 ‘‘(II) is necessary to achieve 

14 specified Federal objectives by pro15 viding credit assistance; and 

16 ‘‘(III) is the most efficient way to 

17 meet such objectives on a borrower18 by-borrower basis; 

19 ‘‘(ii) loans made under this paragraph 

20 may not be subordinated (unless such sub21 ordination is necessary to achieve Federal 

22 objectives, consistent with the criteria and 

23 policies set forth in the Operating Guid24 ance) to— 


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1 ‘‘(I) another debt contracted by 

2 the borrower; or 

3 ‘‘(II) any other claims against 

4 the borrower in the case of default; 

5 ‘‘(iii) direct loans or interest supple6 ments on loan guarantees shall be at an in7 terest rate that is set by reference to a 

8 benchmark interest rate (yield) on market9 able Treasury securities with a similar ma10 turity to the direct loans being made or the 

11 non-Federal loans being guaranteed, and 

12 includes any necessary credit risk premium 

13 at a level consistent with the interest rate 

14 policy set forth in the Operating Guidance; 

15 ‘‘(iv) the Executive Director— 

16 ‘‘(I) shall prescribe explicit 

17 standards for use in periodically as18 sessing the credit risk of new and ex19 isting direct loans and guaranteed 

20 loans; and 

21 ‘‘(II) may not extend credit as22 sistance without determining that 

23 there is a reasonable assurance of re24 payment; 


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1 ‘‘(v) new direct loans may not be obli2 gated and new loan guarantees may not be 

3 committed except to the extent that appro4 priations of budget authority to cover their 

5 costs are made in advance, as required 

6 under section 504 of the Federal Credit 

7 Reform Act of 1990 (2 U.S.C. 661c); 

8 ‘‘(vi) the total principal amount of the 

9 direct loan or loan guarantee may not ex10 ceed— 

11 ‘‘(I) the lower of 70 percent of 

12 total eligible project cost less the per13 centage of eligible project costs that 

14 are otherwise funded by the Fund; or 

15 ‘‘(II) another level prescribed in 

16 the Operating Guidance; and 

17 ‘‘(vii) notwithstanding any other pro18 vision of law relating to the acquisition, 

19 handling, or disposal of property by the 

20 Federal Government, the Fund may com21 plete, recondition, reconstruct, renovate, 

22 repair, maintain, operate, or sell any prop23 erty acquired by the Fund under this sub24 chapter. 

25 ‘‘(D) REPAYMENT.— 


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1 ‘‘(i) POLICIES.—The Fund shall— 

2 ‘‘(I) adhere to the policies set 

3 forth in the Operating Guidance con4 cerning repayment terms; and 

5 ‘‘(II) establish repayment terms 

6 for each direct loan based on the pro7 jected cash flow from project revenues 

8 or other repayment sources. 

9 ‘‘(ii) MATURITY DATE.—The final ma10 turity date of a direct loan under this 

11 paragraph— 

12 ‘‘(I) shall not exceed 90 percent 

13 of the estimated useful economic life 

14 of the asset being financed, except 

15 under conditions set forth in the Op16 erating Guidance; and 

17 ‘‘(II) may not be later than the 

18 estimated useful economic life of the 

19 asset being financed. 

20 ‘‘(E) RISK ASSESSMENT.—Before entering 

21 in any agreement under this section, the Execu22 tive Director shall complete a risk assessment 

23 of the project to be funded. Requirements for 

24 risk assessment shall be outlined in the Oper25 ating Guidance. 


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1 ‘‘(2) LOAN GUARANTEES.— 

2 ‘‘(A) IN GENERAL.—The Fund is author3 ized to provide loan guarantees to eligible fund4 ing recipients on such terms and conditions and 

5 containing such covenants, representations, 

6 warranties, and requirements (including re7 quired audits) as the Fund determines appro8 priate, in accordance with the provisions under 

9 this subchapter, the Operating Guidance, and 

10 all other statutory and regulatory requirements. 

11 ‘‘(B) APPROVED INVESTMENT PLAN.— 

12 Loan guarantees provided under this para13 graph— 

14 ‘‘(i) may only cover eligible project 

15 costs in an approved Investment Plan; and 

16 ‘‘(ii) are subject to the terms and con17 ditions of the approved Investment Plan. 

18 ‘‘(C) TERMS, CONDITIONS, AND LIMITA19 TIONS.— 

20 ‘‘(i) IN GENERAL.—The terms, condi21 tions, and limitations of a guaranteed loan 

22 shall comply with the terms, conditions, 

23 and limitations set forth in paragraph (1) 

24 for a direct loan, including maximum Fund 

25 share requirements, except that the interVerDate Mar 15 2010 00:30 May 12, 2011 Jkt 099200 PO 00000 Frm 00032 Fmt 6652 Sfmt 6201 E:\BILLS\S936.IS S936

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1 est rate on the guaranteed loan and any 

2 repayment features shall be negotiated be3 tween the eligible funding recipient and the 

4 lender in accordance with the policies set 

5 forth in the Operating Guidance, and with 

6 the consent of the Secretary. 

7 ‘‘(ii) INCOME EXCLUDED.—A loan 

8 may not be guaranteed under this para9 graph if— 

10 ‘‘(I) the income from such loan is 

11 excluded from gross income for the 

12 purposes of chapter 1 of the Internal 

13 Revenue Code of 1986; or 

14 ‘‘(II) the guarantee provides sig15 nificant collateral or security, as de16 termined by the Executive Director, 

17 for other obligations generating in18 come that is similarly excluded. 

19 ‘‘(iii) FEES.—Fees or premiums for a 

20 loan guarantee or insurance coverage shall 

21 be set at levels that minimize the cost to 

22 the Government (as defined in section 

23 502(5) of the Federal Credit Reform Act 

24 of 1990 (6 U.S.C. 661a(5))) of such cov25 erage, while supporting achievement of the 


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1 program’s objectives, in accordance with 

2 policies set forth in the Operating Guid3 ance. 

4 ‘‘(iv) PERCENT GUARANTEED.—A 

5 loan guarantee under this paragraph may 

6 not exceed 80 percent of the loss of the 

7 loan. Borrowers who pose less of a risk 

8 shall receive a lower guarantee as a per9 centage of the loan amount. 

10 ‘‘(v) CRITERIA.—A loan may not be 

11 guaranteed under this paragraph unless 

12 the Executive Director determines that— 

13 ‘‘(I) the lender is responsible; 

14 and 

15 ‘‘(II) adequate provision is made 

16 for servicing the loan on reasonable 

17 terms. 

18 ‘‘(vi) CONCLUSIVE EVIDENCE.—Any 

19 guarantee shall be conclusive evidence 

20 that— 

21 ‘‘(I) such guarantee has been 

22 properly obtained; 

23 ‘‘(II) the underlying loan quali24 fied for such guarantee; and 


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1 ‘‘(III) such guarantee is pre2 sumed to be valid, legal, and enforce3 able, unless such guarantee was ob4 tained through fraud or material mis5 representation by the holder. 

6 ‘‘(vii) EFFECT OF DEFAULT.—If, as a 

7 result of a default by a borrower under a 

8 guaranteed loan, after the holder of the 

9 loan has made such further collection ef10 forts and instituted such enforcement pro11 ceedings as the Executive Director may re12 quire, the Executive Director determines 

13 that the holder has suffered a loss, the Ex14 ecutive Director— 

15 ‘‘(I) shall pay to the holder not 

16 more than 80 percent of such loss, as 

17 specified in the guarantee contract; 

18 ‘‘(II) upon making such payment, 

19 shall be subrogated to all the rights of 

20 the recipient of the payment; and 

21 ‘‘(III) shall be entitled to recover 

22 from the borrower the amount of any 

23 payments made pursuant to any guar24 antee entered into under this para25 graph. 


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1 ‘‘(viii) ENFORCEMENT.—The Attorney 

2 General shall take such action as may be 

3 appropriate to enforce any right accruing 

4 to the United States as a result of the 

5 issuance of any loan guarantee under this 

6 paragraph. 

7 ‘‘(ix) SAVINGS PROVISION.—Nothing 

8 in this paragraph may be construed to pre9 clude any forbearance for the benefit of the 

10 borrower, which may be agreed upon by 

11 the Executive Director, if budget authority 

12 for any resulting modification cost (as de13 fined under section 502 of the Congres14 sional Budget Act (6 U.S.C. 661a)) is 

15 available. 

16 ‘‘(D) REPAYMENT.—The Fund shall ad17 here to policies set forth in the Operating Guid18 ance concerning repayment terms and shall es19 tablish repayment terms for each direct loan 

20 based on the projected cash flow from project 

21 revenues or other repayment sources. 

22 ‘‘(E) RISK ASSESSMENT.—Requirements 

23 for risk assessment shall be outlined in the Op24 erating Guidance. 


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1 ‘‘(e) APPLICATION EVALUATION AND QUALIFICA2 TION.— 

3 ‘‘(1) APPLICATION ELIGIBILITY STANDARD.— 

4 An application for financial assistance from the 

5 Fund may not be considered unless— 

6 ‘‘(A) funding recipient or recipients, 

7 project or program of related projects, and as8 sociated project costs identified in the applica9 tion are eligible for such funding under this 

10 subchapter; 

11 ‘‘(B) eligible project costs identified in the 

12 application— 

13 ‘‘(i) are greater than $50,000,000; or 

14 ‘‘(ii) if the application is for a project 

15 or program of related projects located en16 tirely in a rural area, are greater than 

17 $10,000,000; 

18 ‘‘(C) the application identifies financial as19 sistance from sources outside of the Fund equal 

20 to at least 30 percent of the total eligible 

21 project costs; 

22 ‘‘(D) the application identifies project ben23 efits that are distributed broadly, either at a 

24 national or a regional level; and 


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1 ‘‘(E) the applicant is not ineligible to re2 ceive Federal loans, loan guarantees, or insur3 ance due to a delinquency on Federal tax or 

4 non-tax debts, including judgment liens against 

5 property for a debt to the Federal Government. 

6 ‘‘(2) RESOLUTION OF DEBTS.—The Fund shall 

7 use credit bureaus as a screening tool and ask appli8 cants about delinquencies described in paragraph 

9 (1)(E) on the application form. An application from 

10 an applicant that is delinquent on a debt to the Fed11 eral Government may not be processed until after 

12 the applicant satisfactorily resolves the debts in com13 pliance with section 3720B of title 31, United States 

14 Code, and section 285.13 of title 31, Code of Fed15 eral Regulations. 

16 ‘‘(3) QUALIFICATION SCORE.— 

17 ‘‘(A) ASSIGNMENT.—The Fund shall as18 sign to each eligible application a single numer19 ical factor, which shall be— 

20 ‘‘(i) based upon an evaluation of the 

21 information and data collected from the 

22 applicant; 

23 ‘‘(ii) referred to as the ‘qualification 

24 score’; and 


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1 ‘‘(iii) equal to the ratio between the 

2 present value of benefits to the present 

3 value of costs reasonably expected to result 

4 from the funding of the project or projects 

5 proposed in the application. 

6 ‘‘(B) CALCULATION.—The calculation of 

7 the qualification score shall be determined 

8 through a consistently and transparently ap9 plied analytic and systematic framework. In 

10 order to indicate the potential uncertainty of 

11 the qualification score, the Fund shall use a 

12 measure of the uncertainty of expected project 

13 benefits and costs to derive a range of ratio val14 ues with the qualification score as the midpoint 

15 of that range. 

16 ‘‘(C) METHODOLOGY.—The methodology 

17 used to calculate the qualification score and un18 certainty measures shall— 

19 ‘‘(i) apply equal weighting to all meas20 ures of the net present value of benefits 

21 and costs; 

22 ‘‘(ii) include standardized measures of 

23 the expected uncertainty in both total and 

24 specific benefits and costs associated with 

25 the project; and 


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1 ‘‘(iii) include a descriptive statement 

2 delineating the significant factors and 

3 analysis that went into determination of 

4 the score and the range. 

5 ‘‘(D) PUBLICATION.— 

6 ‘‘(i) INVESTMENT PROSPECTUS.—The 

7 methodology of the framework for calcu8 lating the qualification score, including the 

9 specific mechanics of its calculation, shall 

10 be published in the Investment Prospectus. 

11 ‘‘(ii) METHODOLOGY.—The quan12 tification score, the methodology used to 

13 calculate the qualification score, the cal14 culation of the qualification score, and the 

15 measure of uncertainty shall be— 

16 ‘‘(I) provided to the applicant not 

17 later than 15 days after their final de18 termination; and 

19 ‘‘(II) published on the Fund’s 

20 website not later than 30 days after 

21 their final determination. 

22 ‘‘(4) APPLICATION CERTIFICATION.—The Exec23 utive Director may not certify an application as 

24 qualified for financial assistance on the basis of an 

25 evaluation of the information and data collected 


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1 from the applicant unless the Executive Director de2 termines that the application’s qualification score— 

3 ‘‘(A) has been calculated on the basis of 

4 data, estimates, and assumptions that are de5 fensible according to accepted standards of eco6 nomic analysis; 

7 ‘‘(B) appears valid based on efforts by the 

8 Fund to conduct due diligence and verification; 

9 ‘‘(C) is greater than the threshold for qual10 ification published in the Investment Pro11 spectus; and 

12 ‘‘(D) is competitive with scores issued to 

13 applications currently under consideration and 

14 scores issued to applications previously funded 

15 under this section, after taking into account the 

16 extent to which the application under consider17 ation, in order of priority— 

18 ‘‘(i) advances the objectives of the 

19 Fund set forth in section 362(b); 

20 ‘‘(ii) addresses a special infrastructure 

21 investment challenge due to cost, com22 plexity, cross-jurisdictional scope, multi23 modal features, or the use of innovative 

24 technologies; 


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1 ‘‘(iii) provides a cost-effective ap2 proach to achieving the benefits described 

3 in the application relative to alternative ap4 proaches to achieving comparable benefits, 

5 after taking into account the estimated un6 certainty in measures of costs and benefits 

7 associated with the project; 

8 ‘‘(iv) combines amounts received from 

9 the Fund with other revenue sources to le10 verage substantial co-investment from non11 Federal sources; 

12 ‘‘(v) delivers revenue streams from 

13 public or private sources dedicated to pay 

14 debt service, meet ongoing operating ex15 penses, or provide for needed maintenance 

16 and capital renewal over the life cycle of 

17 the funded asset; and 

18 ‘‘(vi) encourages the use of innovative 

19 procurement, asset management, or financ20 ing to optimize the all-in-life-cycle cost-ef21 fectiveness of a project. 

22 ‘‘(f) INVESTMENT PLANS.— 

23 ‘‘(1) QUALIFIED APPLICATION REQUIRE24 MENT.—After an application is certified by the Ex25 ecutive Director as qualified under subsection (e)(4), 


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1 the Executive Director and the applicant shall enter 

2 a process for producing a mutually agreeable Invest3 ment Plan. Financial assistance may not be provided 

4 to an applicant under this section unless the appli5 cant’s Investment Plan has been recommended by 

6 the Board and approved by the Secretary. 

7 ‘‘(2) INVESTMENT PLANNING PROCESS.—The 

8 Fund shall establish an investment planning process 

9 for determining the level, form, and terms of finan10 cial assistance to be offered by the Fund, including 

11 a mutually agreeable financing package that— 

12 ‘‘(A) is adequate to fund the project or 

13 projects included in the application; 

14 ‘‘(B) maximizes total expected project ben15 efits relative to total expected costs; and 

16 ‘‘(C) considers the portion of total costs to 

17 be financed by the Fund. 

18 ‘‘(3) CONSIDERATIONS.—When considering the 

19 appropriate level and form of Fund resources to in20 clude in an Investment Plan, the Fund shall— 

21 ‘‘(A) consider the qualification score 

22 achieved by the application relative to other 

23 current applications and previously funded ap24 plications; 


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1 ‘‘(B) strive to make investment plan deci2 sions on the basis of maximizing total net bene3 fits relative to cost; and 

4 ‘‘(C) consider— 

5 ‘‘(i) the amount of Fund budgetary 

6 resources required to complete a financing 

7 package; 

8 ‘‘(ii) the percentage of Federal re9 sources included in the Investment Plan in 

10 the form of grants; 

11 ‘‘(iii) the level of certainty of the pro12 posed net benefits, including the risks to 

13 the Federal taxpayer and the project spon14 sor in the event of project cost overrun or 

15 failure; and 

16 ‘‘(iv) the percentage of eligible project 

17 costs to be funded through non-Federal re18 sources pledged by the applicant to com19 plete a financing package. 

20 ‘‘(4) INVESTMENT PLANS.—As part of the in21 vestment planning process— 

22 ‘‘(A) the Fund shall have the sole discre23 tion to determine the terms of assistance to be 

24 offered to applicants, subject to the provisions 

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1 ing, and any other statutory and regulatory re2 quirements; 

3 ‘‘(B) if the Fund and the applicant are 

4 able to reach mutually agreeable terms, the 

5 Fund shall record the determination on Fund 

6 assistance and the details of the complete fi7 nancing package in an Investment Plan; 

8 ‘‘(C) the Fund may not approve an Invest9 ment Plan that does not identify a complete fi10 nancing package; and 

11 ‘‘(D) the Fund is not required or com12 pelled to reach agreement on an Investment 

13 Plan. 

14 ‘‘(5) SUBMISSION TO BOARD.—The Executive 

15 Director shall advance Investment Plans for quali16 fied applications to the Board at regular submission 

17 intervals, as set forth in the Operating Guidance. 

18 ‘‘(6) CONFLICT OF INTEREST PROTECTIONS.— 

19 The Secretary of Transportation and the Fund shall 

20 jointly establish, in operating procedures and in the 

21 Operating Guidance, communications practices and 

22 compliance procedures that protect professional staff 

23 of the Fund who are responsible for negotiating In24 vestment Plans from outside or otherwise inappro25 priate influence, and conflicts of interest, including 


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1 necessary restrictions on communications between 

2 staff of the Fund who are responsible for the invest3 ment planning process and individuals and organiza4 tions within and outside the Department of Trans5 portation, including— 

6 ‘‘(A) the Board; 

7 ‘‘(B) the Office of the Secretary; 

8 ‘‘(C) the Secretary; and 

9 ‘‘(D) others needed to safeguard the ability 

10 of the Fund to fairly and independently formu11 late Investment Plans under this subsection. 

12 ‘‘(g) FUNDING DECISIONS.— 

13 ‘‘(1) INVESTMENT PLAN SUBMISSION REQUIRE14 MENT.—The Board may not consider recommending 

15 an application for funding before receiving an In16 vestment Plan from the Executive Director. 

17 ‘‘(2) APPLICATION FUNDING RECOMMENDA18 TION.—Not later than 15 days after receiving an In19 vestment Plan from the Executive Director, the 

20 Board shall— 

21 ‘‘(A) vote on whether to recommend fund22 ing for the Investment Plan; 

23 ‘‘(B) notify the Secretary of the outcome 

24 of such vote; and 


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1 ‘‘(C) if funding is recommended, forward 

2 the Investment Plan to the Secretary for ap3 proval. 

4 ‘‘(3) NO MODIFICATION.—Neither the Board 

5 nor the Secretary may modify any Investment Plan. 

6 ‘‘(4) FUNDING CONSIDERATION.— 

7 ‘‘(A) DETERMINATION.—After considering 

8 an Investment Plan recommended by the 

9 Board, the Secretary shall approve or reject the 

10 Investment Plan. 

11 ‘‘(B) APPROVAL.—If the Investment Plan 

12 is approved by the Secretary, it shall be funded 

13 in accordance with the provisions of the Invest14 ment Plan. 

15 ‘‘(C) REJECTION.—If the Investment Plan 

16 is rejected by the Secretary, the Investment 

17 Plan— 

18 ‘‘(i) shall be returned to the Executive 

19 Director with a detailed justification for 

20 rejecting the Investment Plan, which shall 

21 be forwarded to the applicant; and 

22 ‘‘(ii) may be reconsidered by the Fund 

23 not earlier than 1 year after such date of 

24 return. 


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1 ‘‘(h) PROJECT SPONSORSHIP; PUBLIC BENEFIT

2 ANALYSIS; LEGAL COMPLIANCE.— 

3 ‘‘(1) COMPLIANCE WITH APPLICABLE LAWS.— 

4 ‘‘(A) IN GENERAL.—Subject to subpara5 graphs (B) and (C), the Fund shall determine 

6 which requirements under chapter 53 of this 

7 title or title 23 shall be applicable to projects 

8 receiving financial assistance under this sub9 chapter that would otherwise be eligible for fi10 nancial assistance under such chapter or title. 

11 ‘‘(B) LABOR STANDARDS.—Labor stand12 ards under chapter 53 of this title and title 23 

13 shall be applicable to projects described in sub14 paragraph (A), including— 

15 ‘‘(i) applicable employee protective ar16 rangement under section 5333(b); 

17 ‘‘(ii) the requirement that all laborers 

18 and mechanics employed by contractors or 

19 subcontractors on construction work per20 formed on the projects be paid wages at 

21 rates not less than those prevailing on 

22 similar construction in the locality, as de23 termined by the Secretary of Labor under 

24 subchapter IV of chapter 31 of title 40, 


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1 United States Code (except for section 

2 3145). 

3 ‘‘(C) PLANNING AND ENVIRONMENTAL

4 LAWS.—A project that receives financial assist5 ance under this subchapter shall comply with— 

6 ‘‘(i) the applicable planning and pro7 gramming requirements under section 134 

8 and 135 of title 23; and 

9 ‘‘(ii) all applicable environmental laws 

10 and requirements, including the National 

11 Environmental Policy Act of 1969 (42 

12 U.S.C. 4321 et seq.) and the National His13 toric Preservation Act of 1966 (16 U.S.C. 

14 470 et seq.). 

15 ‘‘(2) LEAD AGENCY.— 

16 ‘‘(A) IN GENERAL.—The Department of 

17 Transportation shall be the Federal lead agency 

18 in the environmental review process for a 

19 project that receives financial assistance under 

20 this subchapter. Subject to subparagraphs (B) 

21 through (D), the Secretary of Transportation 

22 may delegate this responsibility to an operating 

23 administration. 

24 ‘‘(B) JOINT LEAD FEDERAL AGENCY.— 

25 Nothing in this paragraph precludes another 


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1 Federal agency from being a joint lead agency 

2 in accordance with the regulations adopted by 

3 the President’s Council on Environmental Qual4 ity. 

5 ‘‘(C) JOINT LEAD STATE AGENCY.—A non6 Federal government entity, agency, or instru7 mentality receiving funds under this subchapter 

8 may— 

9 ‘‘(i) serve as a joint lead agency with 

10 the Department of Transportation under 

11 the National Environmental Policy Act of 

12 1969 (42 U.S.C. 4321 et seq.); and 

13 ‘‘(ii) at the discretion of the lead Fed14 eral agency, prepare any environmental 

15 document required in support of the 

16 project if the lead Federal agency— 

17 ‘‘(I) furnishes guidance in such 

18 preparation; and 

19 ‘‘(II) independently evaluates, ap20 proves, and adopts the State or local 

21 government’s environmental docu22 mentation before taking any action on 

23 the project. 

24 ‘‘(D) NONGOVERNMENTAL FUNDING RE25 CIPIENTS.—If a project is undertaken by a nonVerDate Mar 15 2010 00:30 May 12, 2011 Jkt 099200 PO 00000 Frm 00050 Fmt 6652 Sfmt 6201 E:\BILLS\S936.IS S936

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1 governmental entity, the non-Federal govern2 ment entity, agency, or instrumentality cospon3 sor of the project shall— 

4 ‘‘(i) serve as a joint lead agency with 

5 the Department; and 

6 ‘‘(ii) have the authority to prepare the 

7 environmental documents described in sub8 paragraph (C)(ii). 

9 ‘‘(3) DETERMINATION OF APPLICABLE MODAL

10 REQUIREMENTS.—If a project has cross-modal com11 ponents, the Fund may designate the specific re12 quirements that shall apply to the project. 

13 ‘‘(i) INVESTMENT-GRADE RATING REQUIREMENT.— 

14 The Fund shall maintain a portfolio of projects whose av15 erage rating is not less than investment grade. 

16 ‘‘§ 365. Studies and reports 

17 ‘‘(a) ANNUAL FINANCIAL AUDIT.— 

18 ‘‘(1) IN GENERAL.—The Fund shall be subject 

19 to an annual financial audit by an independent pub20 lic accounting firm selected by the Board to ensure 

21 that its operations meet generally accepted account22 ing principles. 

23 ‘‘(2) DISSEMINATION.—The Fund shall— 

24 ‘‘(A) submit the results of each audit 

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1 merce, Science, and Transportation of the Sen2 ate and the Committee on Transportation and 

3 Infrastructure of the House of Representatives; 

4 and 

5 ‘‘(B) post such audit results on the Fund’s 

6 website. 

7 ‘‘(b) ANNUAL PERFORMANCE EVALUATION.— 

8 ‘‘(1) IN GENERAL.—The Comptroller General 

9 shall conduct an annual assessment— 

10 ‘‘(A) to evaluate the Fund’s overall per11 formance; and 

12 ‘‘(B) to determine the effectiveness of the 

13 Fund at meeting its objectives and strategy. 

14 ‘‘(2) DISSEMINATION.—The Comptroller Gen15 eral shall submit a report containing the results of 

16 the evaluation conducted under paragraph (1) to the 

17 Committee on Commerce, Science, and Transpor18 tation of the Senate and the Committee on Trans19 portation and Infrastructure of the House of Rep20 resentatives. 

21 ‘‘(c) SEMIANNUAL REPORT.—The Executive Director 

22 shall post semiannual reports on the Fund’s website that 

23 describe the Fund’s activities, including— 

24 ‘‘(1) the status of applications received; 

25 ‘‘(2) the outcome of application evaluations; 


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1 ‘‘(3) the outcome of investment planning proc2 esses; 

3 ‘‘(4) the status of Investment Plans submitted 

4 to the Board; and 

5 ‘‘(5) the status of financial assistance awards 

6 approved by the Secretary. 

7 ‘‘(d) BIANNUAL REPORT.— 

8 ‘‘(1) IN GENERAL.—Every 2 years after the 

9 date of the enactment of the American Infrastruc10 ture Investment Fund Act of 2011, the Board, in 

11 consultation with the Director of the Office of Man12 agement and Budget and the Fund Advisory Com13 mittee, shall prepare a report that— 

14 ‘‘(A) evaluates the Fund’s performance; 

15 ‘‘(B) includes an assessment of the Fund 

16 as a model for infrastructure investment; and 

17 ‘‘(C) may include a recommendation on 

18 whether to extend the Fund’s activities to non19 transportation infrastructure sectors likely to 

20 benefit the United States, including— 

21 ‘‘(i) renewable energy generation; 

22 ‘‘(ii) energy transmission and storage; 

23 ‘‘(iii) energy efficiency; 

24 ‘‘(iv) drinking water and wastewater 

25 systems; 


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1 ‘‘(v) telecommunications; and 

2 ‘‘(vi) other infrastructure activities. 

3 ‘‘(2) DISSEMINATION.—The Board shall— 

4 ‘‘(A) submit the report prepared under 

5 paragraph (1) to the Committee on Commerce, 

6 Science, and Transportation of the Senate and 

7 the Committee on Transportation and Infra8 structure of the House of Representatives; and 

9 ‘‘(B) post the report on the Fund’s 

10 website. 

11 ‘‘(e) INVESTMENT PLAN AND DECISIONS.—Not later 

12 than 90 days after the Board’s decision on an Investment 

13 Plan, the Fund Advisory Committee shall post a report 

14 on the Fund’s website that assesses— 

15 ‘‘(1) the adherence of each funding decision to 

16 the requirements of the Investment Prospectus, Op17 erating Guidance, and this subchapter; 

18 ‘‘(2) the consistency of funded applications with 

19 the primary objective, the secondary objectives, the 

20 Fund strategy, and the requirements under this sub21 chapter; 

22 ‘‘(3) the validity of the qualification certifi23 cation of each funded application; 

24 ‘‘(4) the return on Federal investment likely to 

25 result from each funded Investment Plan; and 


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1 ‘‘(5) the return on total investment likely to re2 sult from each funded Investment Plan.’’. 

3 (b) AUTHORIZATION OF APPROPRIATIONS.— 

4 (1) AMOUNTS AUTHORIZED.— 

5 (A) IN GENERAL.—There are authorized to 

6 be appropriated to carry out subchapter IV of 

7 chapter 3 of title 49, United States Code, as 

8 added by subsection (a), $5,000,000,000 for 

9 each of the fiscal years 2012 and 2013. 

10 (B) AVAILABILITY OF FUNDS.—Amounts 

11 made available under subparagraph (A) shall 

12 remain available until expended. 

13 (2) ADMINISTRATIVE EXPENSES.—Of the 

14 amounts appropriated pursuant to paragraph (1), 

15 the Fund may expend, to pay the reasonable costs 

16 of administering such subchapter IV, inclusive of 

17 any fees collected pursuant to such subchapter— 

18 (A) not more than $50,000,000 in fiscal 

19 year 2012; and 

20 (B) not more than $51,000,000 in fiscal 

21 year 2013. 


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1 SEC. 3. NATIONAL INFRASTRUCTURE INVESTMENT 

2 GRANTS. 

3 (a) ESTABLISHMENT OF PROGRAM.—Chapter 55 of 

4 title 49, United States Code, is amended by adding at the 

5 end the following: 

6 ‘‘Subchapter III—Financial Assistance 

7 ‘‘SEC. 5581. NATIONAL INFRASTRUCTURE INVESTMENT 

8 GRANTS. 

9 ‘‘(a) ESTABLISHMENT OF PROGRAM.—The Secretary 

10 of Transportation shall establish a competitive grant pro11 gram to provide financial assistance for projects that will 

12 have a significant impact on the Nation, a metropolitan 

13 area, or a region. 

14 ‘‘(b) ELIGIBLE PROJECTS.—An applicant is eligible 

15 for a grant under this section for a project that is part 

16 of, or related to, a transportation improvement, including 

17 projects related to the construction or improvement of— 

18 ‘‘(1) a passenger or freight rail line; 

19 ‘‘(2) a highway; 

20 ‘‘(3) a bridge; 

21 ‘‘(4) an airport; 

22 ‘‘(5) an air traffic control system; 

23 ‘‘(6) a port or marine facility; 

24 ‘‘(7) an inland waterway; 

25 ‘‘(8) a transmission or distribution pipeline; 

26 ‘‘(9) public transportation facilities or systems; 


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1 ‘‘(10) intercity passenger bus or passenger rail 

2 facilities or equipment; 

3 ‘‘(11) freight rail facilities or equipment; or 

4 ‘‘(12) planning, preparation, or design of any 

5 project described in paragraphs (1) through (11). 

6 ‘‘(c) PROJECT SELECTION CRITERIA.—In deter7 mining whether to award a grant to an eligible applicant 

8 under this section, the Secretary shall consider the extent 

9 to which the project— 

10 ‘‘(1) leverages Federal investment by encour11 aging non-Federal contributions to the project, in12 cluding contributions from public-private partner13 ships; 

14 ‘‘(2) improves the mobility of people, goods, and 

15 commodities; 

16 ‘‘(3) incorporates new and innovative tech17 nologies, including intelligent transportation sys18 tems; 

19 ‘‘(4) improves energy efficiency or reduces 

20 greenhouse gas emissions; 

21 ‘‘(5) helps maintain or protect the environment, 

22 including reducing air and water pollution; 

23 ‘‘(6) reduces congestion; 


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1 ‘‘(7) improves the condition of transportation 

2 infrastructure, including bringing it into a state of 

3 good repair; 

4 ‘‘(8) improves safety, including reducing trans5 portation accidents, injuries, and fatalities; 

6 ‘‘(9) demonstrates that the proposed project 

7 cannot be readily and efficiently realized without 

8 Federal support and participation; and 

9 ‘‘(10) enhances national or regional economic 

10 development, growth, and competitiveness. 

11 ‘‘(d) PRIORITY.—The Secretary shall give priority to 

12 projects that have the highest system performance im13 provement relative to their benefit-cost analysis. 

14 ‘‘(e) LETTERS OF INTENT.— 

15 ‘‘(1) IN GENERAL.—The Secretary may issue a 

16 letter of intent to an applicant announcing an inten17 tion to obligate, for a major capital project under 

18 this subsection, an amount from future available 

19 budget authority specified in law that is not more 

20 than the amount stipulated as the financial partici21 pation of the Secretary in the project. 

22 ‘‘(2) NOTIFICATION.—Not later than 30 days 

23 before issuing a letter under paragraph (1), the Sec24 retary shall submit written notification of the pro25 posed letter or agreement to the Committee on ComVerDate Mar 15 2010 00:30 May 12, 2011 Jkt 099200 PO 00000 Frm 00058 Fmt 6652 Sfmt 6201 E:\BILLS\S936.IS S936

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1 merce, Science, and Transportation of the Senate 

2 and the Committee on Transportation and Infra3 structure of the House of Representatives, which 

4 shall include— 

5 ‘‘(A) a copy of the proposed letter or 

6 agreement; 

7 ‘‘(B) the criteria used under subsection (c) 

8 for selecting the project for a grant award; and 

9 ‘‘(C) a description of how the project meets 

10 such criteria. 

11 ‘‘(3) COMMITMENT.—An obligation or adminis12 trative commitment may be made only when 

13 amounts are made available. The letter of intent 

14 shall state that the contingent commitment is not an 

15 obligation of the Federal Government, and is subject 

16 to the availability of funds under Federal law and to 

17 Federal laws in force or enacted after the date of 

18 the contingent commitment. 

19 ‘‘(f) FEDERAL SHARE OF NET PROJECT COST.— 

20 ‘‘(1) IN GENERAL.—The Federal share of a 

21 grant for the project shall not exceed 80 percent of 

22 the project net capital cost. 

23 ‘‘(2) ESTIMATE.—The Secretary shall estimate 

24 the net project cost based on engineering studies, 


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1 studies of economic feasibility, and information on 

2 the expected use of equipment or facilities. 

3 ‘‘(3) PRIORITY.—The Secretary shall give pri4 ority in allocating future obligations and contingent 

5 commitments to incur obligations to grant requests 

6 seeking a lower Federal share of the project net cap7 ital cost. 

8 ‘‘(g) COOPERATIVE AGREEMENTS.— 

9 ‘‘(1) IN GENERAL.—An applicant may enter 

10 into an agreement with any public, private, or non11 profit entity to cooperatively implement any project 

12 funded with a grant under this subchapter. 

13 ‘‘(2) FORMS OF PARTICIPATION.—Participation 

14 by an entity under paragraph (1) may consist of— 

15 ‘‘(A) ownership or operation of any land, 

16 facility, vehicle, or other physical asset associ17 ated with the project; 

18 ‘‘(B) cost-sharing of any project expense or 

19 non-Federal share of the project cost, including 

20 in kind contributions; 

21 ‘‘(C) carrying out administration, construc22 tion management, project management, project 

23 operation, or any other management or oper24 ational duty associated with the project; and 


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1 ‘‘(D) any other form of participation ap2 proved by the Secretary. 

3 ‘‘(h) OVERSIGHT PROGRAM.— 

4 ‘‘(1) ESTABLISHMENT.— 

5 ‘‘(A) IN GENERAL.—The Secretary shall 

6 establish an oversight program to monitor the 

7 effective and efficient use of funds authorized to 

8 carry out this section. 

9 ‘‘(B) MINIMUM REQUIREMENT.—At a min10 imum, the program shall be responsive to all 

11 areas relating to financial integrity and project 

12 delivery. 

13 ‘‘(2) FINANCIAL INTEGRITY.— 

14 ‘‘(A) FINANCIAL MANAGEMENT SYS15 TEMS.—The Secretary shall perform annual re16 views that address elements of the applicant’s 

17 financial management systems that affect 

18 projects approved under subsection (a). 

19 ‘‘(B) PROJECT COSTS.—The Secretary 

20 shall develop minimum standards for estimating 

21 project costs and shall periodically evaluate the 

22 practices of applicants for estimating project 

23 costs, awarding contracts, and reducing project 

24 costs. 


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1 ‘‘(3) PROJECT DELIVERY.—The Secretary shall 

2 perform annual reviews that address elements of the 

3 project delivery system of an applicant, which ele4 ments include one or more activities that are in5 volved in the life cycle of a project from conception 

6 to completion of the project. 

7 ‘‘(4) RESPONSIBILITY OF THE APPLICANTS.— 

8 ‘‘(A) IN GENERAL.—Each applicant shall 

9 submit to the Secretary for approval such 

10 plans, specifications, and estimates for each 

11 proposed project as the Secretary may require. 

12 ‘‘(B) APPLICANT SUBRECIPIENTS.—The 

13 applicant shall be responsible for determining 

14 that a subrecipient of Federal funds under this 

15 section has— 

16 ‘‘(i) adequate project delivery systems 

17 for projects approved under this section; 

18 and 

19 ‘‘(ii) sufficient accounting controls to 

20 properly manage such Federal funds. 

21 ‘‘(C) PERIODIC REVIEW.—The Secretary 

22 shall periodically review the monitoring of sub23 recipients by the applicant. 

24 ‘‘(5) SPECIFIC OVERSIGHT RESPONSIBIL25 ITIES.—Nothing in this section shall affect or disVerDate Mar 15 2010 00:30 May 12, 2011 Jkt 099200 PO 00000 Frm 00062 Fmt 6652 Sfmt 6201 E:\BILLS\S936.IS S936

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1 charge any oversight responsibility of the Secretary 

2 specifically provided for under this title or other 

3 Federal law. 

4 ‘‘(i) MAJOR PROJECTS.— 

5 ‘‘(1) IN GENERAL.—A recipient of a grant for 

6 a project under this section with an estimated total 

7 cost of $500,000,000 or more, and a recipient for 

8 such other projects as may be identified by the Sec9 retary, shall submit to the Secretary for each 

10 project— 

11 ‘‘(A) a project management plan; and 

12 ‘‘(B) an annual financial plan. 

13 ‘‘(2) PROJECT MANAGEMENT PLAN.—A project 

14 management plan shall document— 

15 ‘‘(A) the procedures and processes that are 

16 in effect to provide timely information to the 

17 project decision makers to effectively manage 

18 the scope, costs, schedules, quality of, and the 

19 Federal requirements applicable to, the project; 

20 and 

21 ‘‘(B) the role of the agency leadership and 

22 management team in the delivery of the project. 

23 ‘‘(3) FINANCIAL PLAN.—A financial plan 

24 shall— 


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1 ‘‘(A) be based on detailed estimates of the 

2 cost to complete the project; and 

3 ‘‘(B) provide for the annual submission of 

4 updates to the Secretary that are based on rea5 sonable assumptions, as determined by the Sec6 retary, of future increases in the cost to com7 plete the project. 

8 ‘‘(j) OTHER PROJECTS.—A recipient of Federal fi9 nancial assistance for a project under this title with an 

10 estimated total cost of $100,000,000 or more that is not 

11 covered by subsection (i) shall prepare an annual financial 

12 plan. Annual financial plans prepared under this sub13 section shall be made available to the Secretary for review 

14 upon the request of the Secretary. 

15 ‘‘(k) OTHER TERMS AND CONDITIONS.—The Sec16 retary shall determine what additional grant terms and 

17 conditions are necessary and appropriate to meet the re18 quirements of this section. 

19 ‘‘(l) REGULATIONS.—Not later than 1 year after the 

20 date of the enactment of the American Infrastructure In21 vestment Fund Act of 2011, the Secretary shall prescribe 

22 regulations to implement this section. 

23 ‘‘(m) APPLICANT DEFINED.—In this subchapter, the 

24 term ‘applicant’ includes a State, a political subdivision 


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1 of a State, government-sponsored authorities and corpora2 tions, and the District of Columbia. 

3 ‘‘(n) SECRETARIAL OVERSIGHT.— 

4 ‘‘(1) CONSTRUCTION MANAGEMENT CON5 TRACTS.—The Secretary may use not more than 1 

6 percent of amounts made available in a fiscal year 

7 for capital projects under this subchapter to enter 

8 into contracts to oversee the construction of such 

9 projects. 

10 ‘‘(2) COMPLIANCE REVIEWS.—The Secretary 

11 may use amounts available under paragraph (1) to 

12 make contracts for safety, procurement, manage13 ment, and financial compliance reviews and audits of 

14 a recipient of amounts under paragraph (1). 

15 ‘‘(3) FEDERAL COSTS.—The Federal Govern16 ment shall pay the entire cost of carrying out a con17 tract under this subsection. 

18 ‘‘(o) PERFORMANCE EVALUATION.— 

19 ‘‘(1) ANNUAL REPORT.— 

20 ‘‘(A) IN GENERAL.—The Comptroller Gen21 eral of the United States shall conduct an an22 nual assessment to evaluate the overall per23 formance of grants made under the program es24 tablished pursuant to subsection (a). 


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1 ‘‘(B) DISSEMINATION.—The Comptroller 

2 General shall submit a report containing the re3 sults of the evaluation conducted under sub4 paragraph (A) to the Committee on Commerce, 

5 Science, and Transportation of the Senate and 

6 the Committee on Transportation and Infra7 structure of the House of Representatives. 

8 ‘‘(2) BIANNUAL REPORT.—Not later than 1 

9 year after the date of the enactment of the American 

10 Infrastructure Investment Fund Act of 2011, and 

11 every 6 months thereafter, the Secretary of Trans12 portation shall submit a report to the congressional 

13 committees set forth in paragraph (1)(B) that docu14 ments— 

15 ‘‘(A) the number of applications received 

16 under this section; 

17 ‘‘(B) the status of such applications; 

18 ‘‘(C) the outcome of application evalua19 tions; and 

20 ‘‘(D) the status of grants awarded under 

21 the program established pursuant to subsection 

22 (a). 

23 ‘‘(p) AUTHORIZATION OF APPROPRIATIONS.—There 

24 are authorized to be appropriated to the Secretary 


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1 $600,000,000 for each of the fiscal years 2012 and 2013 

2 to carry out this section.’’. 

3 (b) CONFORMING AMENDMENT.—The table of con4 tents for chapter 55 of title 49, United States Code, is 

5 amended by adding at the end the following: 

‘‘SUBCHAPTER III. FINANCIAL ASSISTANCE

‘‘5581. National infrastructure investment grants’’. 

6 SEC. 4. MULTI-MODAL TRANSPORTATION FUNDING. 

7 Section 133(b) of title 23, United States Code, is 

8 amended by adding at the end the following: 

9 ‘‘(16) Passenger and freight transportation 

10 projects. 

11 ‘‘(17) Port infrastructure projects.’’. 

Æ 


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