49 U.S.C. § 116 (TRANSPORTATION)
§ 116. National Surface Transportation and Innovative Finance Bureau
(a) Establishment.—
The Secretary of Transportation shall establish a National Surface Transportation and Innovative Finance Bureau in the Department.
(b) Purposes.—
The purposes of the Bureau shall be—
(1) to provide assistance and communicate best practices and financing and funding opportunities to eligible entities for the programs referred to in subsection (d)(1);
(2) to administer the application processes for programs within the Department in accordance with subsection (d);
(3) to promote innovative financing best practices in accordance with subsection (e);
(4) to reduce uncertainty and delays with respect to environmental reviews and permitting in accordance with subsection (f); and
(5) to reduce costs and risks to taxpayers in project delivery and procurement in accordance with subsection (g).
(c) Executive Director.—
(1) Appointment.—
The Bureau shall be headed by an Executive Director, who shall be appointed in the competitive service by the Secretary, with the approval of the President.
(2) Duties.—
The Executive Director shall—
(A) report to the Under Secretary of Transportation for Policy;
(B) be responsible for the management and oversight of the daily activities, decisions, operations, and personnel of the Bureau;
(C) support the Council on Credit and Finance established under section 117 in accordance with this section; and
(D) carry out such additional duties as the Secretary may prescribe.
(d) Administration of Certain Application Processes.—
(1) In general.—
The Bureau shall administer the application processes for the following programs:
(A) The infrastructure finance programs authorized under chapter 6 of title 23.
(B) The railroad rehabilitation and improvement financing program authorized under sections 22401 through 22403.
(C) Amount allocations authorized under section 142(m) of the Internal Revenue Code of 1986.
(D) The Rural and Tribal Assistance Pilot Program established under section 21205(b)(1) of the Surface Transportation Investment Act of 2021.
(2) Congressional notification.—
The Executive Director shall ensure that the congressional notification requirements for each program referred to in paragraph (1) are followed in accordance with the statutory provisions applicable to the program.
(3) Reports.—
The Executive Director shall ensure that the reporting requirements for each program referred to in paragraph (1) are followed in accordance with the statutory provisions applicable to the program.
(4) Coordination.—
In administering the application processes for the programs referred to in paragraph (1), the Executive Director shall coordinate with appropriate officials in the Department and its modal administrations responsible for administering such programs.
(5) Streamlining approval processes.—
Not later than 1 year after the date of enactment of this section, the Executive Director shall submit to the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Commerce, Science, and Transportation, the Committee on Banking, Housing, and Urban Affairs, and the Committee on Environment and Public Works of the Senate a report that—
(A) evaluates the application processes for the programs referred to in paragraph (1);
(B) identifies administrative and legislative actions that would improve the efficiency of the application processes without diminishing Federal oversight; and
(C) describes how the Executive Director will implement administrative actions identified under subparagraph (B) that do not require an Act of Congress.
(6) Procedures and transparency.—
(A) Procedures.—
With respect to the programs referred to in paragraph (1), the Executive Director shall—
(i) establish procedures for analyzing and evaluating applications and for utilizing the recommendations of the Council on Credit and Finance;
(ii) establish procedures for addressing late-arriving applications, as applicable, and communicating the Bureau’s decisions for accepting or rejecting late applications to the applicant and the public; and
(iii) document major decisions in the application evaluation process through a decision memorandum or similar mechanism that provides a clear rationale for such decisions.
(B) Review.—
(i) In general.—
The Comptroller General of the United States shall review the compliance of the Executive Director with the requirements of this paragraph.
(ii) Recommendations.—
The Comptroller General may make recommendations to the Executive Director in order to improve compliance with the requirements of this paragraph.
(iii) Report.—
Not later than 3 years after the date of enactment of this section, the Comptroller General shall submit to the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Environment and Public Works, the Committee on Banking, Housing, and Urban Affairs, and the Committee on Commerce, Science, and Transportation of the Senate a report on the results of the review conducted under clause (i), including findings and recommendations for improvement.
(e) Innovative Financing Best Practices.—
(1) In general.—
The Bureau shall work with the modal administrations within the Department, eligible entities, and other public and private interests to develop and promote best practices for innovative financing and public-private partnerships.
(2) Activities.—
The Bureau shall carry out paragraph (1)—
(A) by making Federal credit assistance programs more accessible to eligible recipients;
(B) by providing advice and expertise to eligible entities that seek to leverage public and private funding;
(C) by sharing innovative financing best practices and case studies from eligible entities with other eligible entities that are interested in utilizing innovative financing methods; and
(D) by developing and monitoring—
(i) best practices with respect to standardized State public-private partnership authorities and practices, including best practices related to—
(I) accurate and reliable assumptions for analyzing public-private partnership procurements;
(II) procedures for the handling of unsolicited bids;
(III) policies with respect to noncompete clauses; and
(IV) other significant terms of public-private partnership procurements, as determined appropriate by the Bureau;
(ii) standard contracts for the most common types of public-private partnerships for transportation facilities; and
(iii) analytical tools and other techniques to aid eligible entities in determining the appropriate project delivery model, including a value for money analysis.
(3) Transparency.—
The Bureau shall—
(A) ensure the transparency of a project receiving credit assistance under a program referred to in subsection (d)(1) and procured as a public-private partnership by—
(i) requiring the sponsor of the project to undergo a value for money analysis or a comparable analysis prior to deciding to advance the project as a public-private partnership;
(ii) requiring the analysis required under subparagraph (A), and other key terms of the relevant public-private partnership agreement, to be made publicly available by the project sponsor at an appropriate time;
(iii) not later than 3 years after the date of completion of the project, requiring the sponsor of the project to conduct a review regarding whether the private partner is meeting the terms of the relevant public-private partnership agreement; and
(iv) providing a publicly available summary of the total level of Federal assistance in such project; and
(B) develop guidance to implement this paragraph that takes into consideration variations in State and local laws and requirements related to public-private partnerships.
(4) Support to project sponsors.—
At the request of an eligible entity, the Bureau shall provide technical assistance to the eligible entity regarding proposed public-private partnership agreements for transportation facilities, including assistance in performing a value for money analysis or comparable analysis.
(f) Environmental Review and Permitting.—
(1) In general.—
The Bureau shall take actions that are appropriate and consistent with the Department’s goals and policies to improve the delivery timelines for projects carried out under the programs referred to in subsection (d)(1).
(2) Activities.—
The Bureau shall carry out paragraph (1)—
(A) by coordinating efforts to improve the efficiency and effectiveness of the environmental review and permitting process;
(B) by providing technical assistance and training to field and headquarters staff of Federal agencies on policy changes and innovative approaches to the delivery of projects; and
(C) by identifying, developing, and tracking metrics for permit reviews and decisions by Federal agencies for projects under the National Environmental Policy Act of 1969.
(3) Support to project sponsors.—
At the request of an eligible entity that is carrying out a project under a program referred to in subsection (d)(1), the Bureau, in coordination with the appropriate modal administrations within the Department, shall provide technical assistance with regard to the compliance of the project with the requirements of the National Environmental Policy Act 1969 and relevant Federal environmental permits.
(g) Project Procurement.—
(1) In general.—
The Bureau shall promote best practices in procurement for a project receiving assistance under a program referred to in subsection (d)(1) by developing, in coordination with modal administrations within the Department as appropriate, procurement benchmarks in order to ensure accountable expenditure of Federal assistance over the life cycle of the project.
(2) Procurement benchmarks.—
To the maximum extent practicable, the procurement benchmarks developed under paragraph (1) shall—
(A) establish maximum thresholds for acceptable project cost increases and delays in project delivery;
(B) establish uniform methods for States to measure cost and delivery changes over the life cycle of a project; and
(C) be tailored, as necessary, to various types of project procurements, including design-bid-build, design-build, and public-private partnerships.
(3) Data collection.—
The Bureau shall—
(A) collect information related to procurement benchmarks developed under paragraph (1), including project specific information detailed under paragraph (2); and
(B) provide on a publicly accessible Internet Web site of the Department a report on the information collected under subparagraph (A).
(h) Elimination and Consolidation of Duplicative Offices.—
(1) Elimination of offices.—
The Secretary may eliminate any office within the Department if the Secretary determines that—
(A) the purposes of the office are duplicative of the purposes of the Bureau; and
(B) the elimination of the office does not adversely affect the obligations of the Secretary under any Federal law.
(2) Consolidation of offices and office functions.—
The Secretary may consolidate any office or office function within the Department into the Bureau that the Secretary determines has duties, responsibilities, resources, or expertise that support the purposes of the Bureau.
(3) Staffing and budgetary resources.—
(A) In general.—
The Secretary shall ensure that the Bureau is adequately staffed and funded.
(B) Staffing.—
The Secretary may transfer to the Bureau a position within the Department from any office that is eliminated or consolidated under this subsection if the Secretary determines that the position is necessary to carry out the purposes of the Bureau.
(C) Savings provision.—
If the Secretary transfers a position to the Bureau under subparagraph (B), the Secretary, in coordination with the appropriate modal administration, shall ensure that the transfer of the position does not adversely affect the obligations of the modal administration under any Federal law.
(D) Budgetary resources.—
(i) Transfer of funds from eliminated or consolidated offices.—
The Secretary may transfer to the Bureau funds allocated to any office or office function that is eliminated or consolidated under this subsection to carry out the purposes of the Bureau. Any such funds or limitation of obligations or portions thereof transferred to the Bureau may be transferred back to and merged with the original account.
(ii) Transfer of funds allocated to administrative costs.—
The Secretary may transfer to the Bureau funds allocated to the administrative costs of processing applications for the programs referred to in subsection (d)(1). Any such funds or limitation of obligations or portions thereof transferred to the Bureau may be transferred back to and merged with the original account.
(4) Notification.—
Not later than 90 days after the date of enactment of this section, and every 90 days thereafter, the Secretary shall notify the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Environment and Public Works, the Committee on Banking, Housing, and Urban Affairs, and the Committee on Commerce, Science, and Transportation of the Senate of—
(A) the offices eliminated under paragraph (1) and the rationale for elimination of the offices;
(B) the offices and office functions consolidated under paragraph (2) and the rationale for consolidation of the offices and office functions;
(C) the actions taken under paragraph (3) and the rationale for taking such actions; and
(D) any additional legislative actions that may be needed.
(i) Savings Provisions.—
(1) Laws and regulations.—
Nothing in this section may be construed to change a law or regulation with respect to a program referred to in subsection (d)(1).
(2) Responsibilities.—
Nothing in this section may be construed to abrogate the responsibilities of an agency, operating administration, or office within the Department otherwise charged by a law or regulation with other aspects of program administration, oversight, or project approval or implementation for the programs and projects subject to this section.
(3) Applicability.—
Nothing in this section may be construed to affect any pending application under 1 or more of the programs referred to in subsection (d)(1) that was received by the Secretary on or before the date of enactment of this section.
(j) Definitions.—
In this section, the following definitions apply:
(1) Bureau.—
The term “Bureau” means the National Surface Transportation and Innovative Finance Bureau of the Department.
(2) Department.—
The term “Department” means the Department of Transportation.
(3) Eligible entity.—
The term “eligible entity” means an eligible applicant receiving financial or credit assistance under 1 or more of the programs referred to in subsection (d)(1).
(4) Executive director.—
The term “Executive Director” means the Executive Director of the Bureau.
(5) Multimodal project.—
The term “multimodal project” means a project involving the participation of more than 1 modal administration or secretarial office within the Department.
(6) Project.—
The term “project” means a highway project, public transportation capital project, freight or passenger rail project, or multimodal project.
(Added Pub. L. 114–94, div. A, title IX, § 9001(a), Dec. 4, 2015, 129 Stat. 1612; amended Pub. L. 115–56, div. D, § 164(a), as added Pub. L. 115–123, div. B, § 20101(2), Feb. 9, 2018, 132 Stat. 121; Pub. L. 117–58, div. B, title I, §§ 21101(d)(4), 21205(i), 21301(j)(4)(A), title V, § 25009(b), Nov. 15, 2021, 135 Stat. 657, 682, 692, 854.)
heading: Editorial Notes
heading: References in Text
text: Section 142 of the Internal Revenue Code of 1986, referred to in subsec. (d)(1)(C), is classified to section 142 of Title 26, Internal Revenue Code.
Section 21205(b)(1) of the Surface Transportation Investment Act of 2021, referred to in subsec. (d)(1)(D), is section 21205(b)(1) of Pub. L. 117–58, which is set out in a note below.
The date of enactment of this section, referred to in subsecs. (d)(5), (6)(B)(iii), (h)(4), and (i)(3), is the date of enactment of Pub. L. 114–94, which was approved Dec. 4, 2015.
The National Environmental Policy Act of 1969, referred to in subsec. (f)(2)(D), (3), is Pub. L. 91–190, Jan. 1, 1970, 83 Stat. 852, which is classified generally to chapter 55 (§ 4321 et seq.) of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 4321 of Title 42 and Tables.
heading: Amendments
text: 2021—Subsec. (d)(1)(B). Pub. L. 117–58, § 21301(j)(4)(A), substituted “sections 22401 through 22403” for “sections 501 through 503 of the Railroad Revitalization and Regulatory Reform Act of 1976 (45 U.S.C. 821–823)”.
Subsec. (d)(1)(D). Pub. L. 117–58, § 21205(h), added subpar. (D). Former subpar. (D) struck out.
Pub. L. 117–58, § 21101(d)(4), struck out subpar. (D) which read as follows: “The nationally significant freight and highway projects program under section 117 of title 23.”
Subsec. (f)(2). Pub. L. 117–58, § 25009(b), redesignated subpars. (B) to (D) as (A) to (C), respectively, and struck out former subpar. (A) which read as follows: “by serving as the Department’s liaison to the Council on Environmental Quality;”.
2018—Subsec. (h)(3)(D)(i), (ii). Pub. L. 115–56, § 164(a), as added by Pub. L. 115–123, § 20101(2), substituted “The” for “During the 2-year period beginning on the date of enactment of this section, the” and inserted at end “Any such funds or limitation of obligations or portions thereof transferred to the Bureau may be transferred back to and merged with the original account.”
heading: Statutory Notes and Related Subsidiaries
heading: Effective Date
text: Section effective Oct. 1, 2015, see section 1003 of Pub. L. 114–94, set out as an Effective Date of 2015 Amendment note under section 5313 of Title 5, Government Organization and Employees.
heading: Rural and Tribal Infrastructure Advancement
text: Pub. L. 117–58, div. B, title I, § 21205(a)–(h), Nov. 15, 2021, 135 Stat. 680–682, provided that:
“(a) Definitions.—
In this section:
“(1) Build america bureau.—
The term ‘Build America Bureau’ means the National Surface Transportation and Innovative Finance Bureau established under section 116 of title 49, United States Code.
“(2) Eligible entity.—
The term ‘eligible entity’ means—
“(A) a unit of local government or political subdivision that is located outside of an urbanized area with a population of more than 150,000 residents, as determined by the Bureau of the Census;
“(B) a State seeking to advance a project located in an area described in subparagraph (A);
“(C) a federally recognized Indian Tribe; and
“(D) the Department of Hawaiian Home Lands.
“(3) Eligible program.—
The term ‘eligible program’ means any program described in—
“(A) subparagraph (A) or (B) of section 116(d)(1) of title 49, United States Code;
“(B) section 118(d)(3)(A) of that title (as added by section 21101(a)); or
“(C) chapter 67 of that title (as added by section 21201).
“(4) Pilot program.—
The term ‘pilot program’ means the Rural and Tribal Assistance Pilot Program established under subsection (b)(1).
“(b) Establishment.—
“(1) In general.—
The Secretary [of Transportation] shall establish within the Build America Bureau a pilot program, to be known as the ‘Rural and Tribal Assistance Pilot Program’, to provide to eligible entities the assistance and information described in paragraph (2).
“(2) Assistance and information.—
In carrying out the pilot program, the Secretary may provide to an eligible entity the following:
“(A) Financial, technical, and legal assistance to evaluate potential projects reasonably expected to be eligible to receive funding or financing assistance under an eligible program.
“(B) Assistance with development-phase activities, including—
“(i) project planning;
“(ii) feasibility studies;
“(iii) revenue forecasting and funding and financing options analyses;
“(iv) environmental review;
“(v) preliminary engineering and design work;
“(vi) economic assessments and cost-benefit analyses;
“(vii) public benefit studies;
“(viii) statutory and regulatory framework analyses;
“(ix) value for money studies;
“(x) evaluations of costs to sustain the project;
“(xi) evaluating opportunities for private financing and project bundling; and
“(xii) any other activity determined to be appropriate by the Secretary.
“(C) Information regarding innovative financing best practices and case studies, if the eligible entity is interested in using innovative financing methods.
“(c) Assistance From Expert Firms.—
The Secretary may retain the services of expert firms, including counsel, in the field of municipal and project finance to assist in providing financial, technical, and legal assistance to eligible entities under the pilot program.
“(d) Website.—
“(1) Description of pilot program.—
“(A) In general.—
The Secretary shall make publicly available on the website of the Department [of Transporation] a description of the pilot program, including—
“(i) the resources available to eligible entities under the pilot program; and
“(ii) the application process established under paragraph (2)(A).
“(B) Clearinghouse.—
The Secretary may establish a clearinghouse for tools, templates, and best practices on the page of the website of the Department that contains the information described in subparagraph (A).
“(2) Applications.—
“(A) In general.—
Not later than 180 days after the date of enactment of this Act [Nov. 15, 2021], the Secretary shall establish a process by which an eligible entity may submit to the Secretary an application under the pilot program, in such form and containing such information as the Secretary may require.
“(B) Online portal.—
The Secretary shall develop and make available to the public an online portal through which the Secretary may receive applications under subparagraph (A), on a rolling basis.
“(C) Approval.—
“(i) In general.—
Not later than 60 days after the date on which the Secretary receives a complete application under subparagraph (A), the Secretary shall provide to each eligible entity that submitted the application a notice describing whether the application is approved or disapproved.
“(ii) Additional written notification.—
“(I) In general.—
Not later than 30 days after the date on which the Secretary provides to an eligible entity a notification under clause (i), the Secretary shall provide to the eligible entity an additional written notification of the approval or disapproval of the application.
“(II) Disapproved applications.—
If the application of an eligible entity is disapproved under this subparagraph, the additional written notification provided to the eligible entity under subclause (I) shall include an offer for a written or telephonic debrief by the Secretary that will provide an explanation of, and guidance regarding, the reasons why the application was disapproved.
“(iii) Insufficient applications.—
The Secretary shall not approve an application under this subparagraph if the application fails to meet the applicable criteria established under this section.
“(3) Dashboard.—
The Secretary shall publish on the website of the Department a monthly report that includes, for each application received under the pilot program—
“(A) the type of eligible entity that submitted the application;
“(B) the location of each potential project described in the application;
“(C) a brief description of the assistance requested;
“(D) the date on which the Secretary received the application; and
“(E) the date on which the Secretary provided the notice of approval or disapproval under paragraph (2)(C)(i).
“(e) Experts.—
An eligible entity that receives assistance under the pilot program may retain the services of an expert for any phase of a project carried out using the assistance, including project development, regardless of whether the expert is retained by the Secretary under subsection (c).
“(f) Funding.—
“(1) In general.—
For each of fiscal years 2022 through 2026, the Secretary may use to carry out the pilot program, including to retain the services of expert firms under subsection (c), any amount made available to the Secretary to provide credit assistance under an eligible program that is not otherwise obligated, subject to paragraph (2).
“(2) Limitation.—
The amount used under paragraph (1) to carry out the pilot program shall be not more than—
“(A) $1,600,000 for fiscal year 2022;
“(B) $1,800,000 for fiscal year 2023;
“(C) $2,000,000 for fiscal year 2024;
“(D) $2,200,000 for fiscal year 2025; and
“(E) $2,400,000 for fiscal year 2026.
“(3) Geographical distribution.—
Not more than 20 percent of the funds made available to carry out the pilot program for a fiscal year may be used for projects in a single State during that fiscal year.
“(g) Sunset.—
The pilot program shall terminate on the date that is 5 years after the date of enactment of this Act [Nov. 15, 2021].
“(h) Nonapplicability.—
Nothing in this section limits the ability of the Build America Bureau or the Secretary to establish or carry out any other assistance program under title 23 or title 49, United States Code.”