I 117th CONGRESS 1st Session H. R. 5771 IN THE HOUSE OF REPRESENTATIVES October 28, 2021 Mr. García of Illinois (for himself and Mr. Schneider ) introduced the following bill; which was referred to the Committee on Transportation and Infrastructure A BILL To amend title 23, United States Code, to establish a dedicated, competitive highway-rail grade separation program, and for other purposes.

1. Short title This Act may be cited as the Building Much Needed Rail Grade Separations Act of 2021 . 2. Grade separation grant program (a) In general Chapter 1 of title 23, United States Code, is amended by inserting after section 130 the following: 130A. Railway-highway crossing separation program (a) Definitions In this section: (1) Crossing The term crossing means a railway-highway grade crossing. (2) Grade separation The term grade separation means the elimination of a rail-highway grade crossing through the building of an additional structure such as an overpass, underpass, or trench, or a rail line relocation and improvement project that results in the closure of a highway-grade crossing. (3) Large project The term large project means a project funded under this section that has total eligible project costs of greater than $100,000,000. (4) Program The term Program means the grade separation investment program established under subsection (b)(1). (b) Establishment of grade separation program (1) In general The Secretary shall establish a grade separation investment program to provide grants on a competitive basis to carry out activities described in subsection (i) relating to grade separations. (2) Goals The goals of the Program shall be— (A) to separate railway-highway grade crossings; (B) to improve safety by reducing the number of deaths and injuries at rail-highway crossings; (C) to increase the efficiency, and reliability of the movement of people and freight over rail-highway crossings; (D) to increase the capacity of the freight and passenger rail system; (E) to reduce the amount of noise from trains; and (F) to improve air quality and reduce greenhouse gas emissions from less idling at rail-highway crossings, especially in frontline communities. (c) Funding (1) Grant amounts Except as otherwise provided, a grant under the Program shall be— (A) in the case of a large project, in an amount that is— (i) adequate to fully fund the project (in combination with other financial resources identified in the application); and (ii) not less than $50,000,000; and (B) in the case of an eligible project that is not a large project, in an amount that is— (i) adequate to fully fund the project (in combination with other financial resources identified in the application); and (ii) not less than $2,500,000. (2) Maximum amount For an eligible project receiving assistance under the Program, the amount of assistance provided by the Secretary under this section, as a share of eligible project costs, shall be— (A) in the case of a large project, not more than 50 percent; and (B) in the case of a project that is not a large project, not more than 80 percent. (3) Railroad liability Any railroad or railroads involved in a project paid for in whole or in part from amounts made available under this section shall be liable to the United States for the net benefit to the railroad determined under the classification of such project made pursuant to paragraph (4). (4) Railroad share Any railroad or railroads involved in a grade separation project carried out under this Act that benefits from such project shall be liable to the United States for 10 percent of the costs of construction, which shall be deemed to represent the net benefit to the railroad or railroads for the purpose of determining the railroad’s share of the cost of construction. (5) Cash share Not more than half of the amount required under paragraph (4) may be attributable to non-cash contributions of materials and labor furnished by the railroad in connection with the construction of such project. (6) Large projects At least 70 percent of the funds awarded in a fiscal year under this Program shall used for large projects. (7) Future pipeline At least 5 percent of the total amount awarded in a fiscal year under this Program shall be for projects seeking funding for planning, preliminary engineering, or final environmental review. The Secretary shall ensure that the funding awarded is sufficient for such project to be eligible for grant amounts for final design or construction in a future application cycle. (d) Eligible entity The Secretary may make a grant under the Program to any of the following: (1) A State. (2) A group of States. (3) An interstate compact. (4) A public agency or publicly chartered authority established by one or more States. (5) A political subdivision of a State. (6) A metropolitan planning organization. (7) Amtrak or another rail carrier that provides intercity rail passenger transportation (as defined in section 24102 of title 49). (8) A commuter rail authority. (9) A Tribal government or a consortium of Tribal governments. (10) A multistate or multijurisdictional group of entities described in paragraphs (1) through (9). (e) Administration of funds The Secretary may transfer any amounts awarded under this section, as appropriate, after selection, to the Federal Railroad Administration for— (1) administration of funds in accordance with title 49; or (2) for administration of funds in accordance with chapter 53 of title 49. (f) Considerations (1) Primary considerations In awarding grants under the Program, the Secretary shall consider the following primary factors: (A) Accident history at the crossing over the last 10 years, including the number of fatalities and injuries. (B) Volume of trains, both freight and passenger, passing through the crossing. (C) Average speed of trains, both freight and passenger, that pass through the crossing. (D) Annual average daily motor vehicle, cyclist, and pedestrian traffic at the crossing. (E) Likelihood of a collision based on the geometry of the crossing. (F) Design speed and speed limit of the roadway that meets the crossing. (G) The number of other at-grade crossings in the vicinity of the project location. (H) The number of other grade separated crossings in the vicinity of the project location. (I) The amount of critical facilities near the crossing, including emergency response services, hospitals, schools, chemical and power plants (including nuclear), military bases and installations, and other similar facilities as determined by the Secretary. (J) Whether the project is located in or would primarily benefit economically disadvantaged communities, including environmental justice communities, underserved communities, or communities located in areas of persistent poverty. (2) Secondary considerations In awarding grants under the Program, the Secretary shall consider the following secondary factors: (A) Improvement in air quality, including reductions in greenhouse gas emissions. (B) Decrease in train noise. (C) Increase in economic development. (D) Improvements to commuter and intercity passenger rail service and on-time performance. (E) Improvements to the rail freight network. (F) The applicant’s history of demonstrating financial commitment to, and funding of, similar projects. (G) Any other factors as determined by the Secretary. (3) Prohibited considerations In awarding grants under this section, the Secretary may not— (A) limit the amount of grants or assistance projects located in 1 State can receive; or (B) take into consideration the amount of new non-Federal revenue an applicant has raised. (g) Competitive process and evaluation of eligible projects other than large projects (1) Competitive process (A) In general The Secretary shall— (i) for the first fiscal year for which funds are made available for obligation under the Program, not later than 60 days after the date on which the template under subparagraph (B)(i) is developed, and in subsequent fiscal years, not later than 60 days after the date on which amounts are made available for obligation under the Program, solicit grant applications for eligible projects other than large projects; and (ii) not later than 120 days after the date on which the solicitation under clause (i) expires, conduct evaluations under paragraph (3). (B) Requirements In carrying out subparagraph (A), the Secretary shall— (i) develop a template for applicants to use to summarize project needs and benefits, including benefits described in paragraph (3)(B)(i); and (ii) enable applicants to use data from the national crossing inventory under section 20160 of title 49 to populate templates described in clause (i), as applicable. (2) Applications An eligible entity shall submit to the Secretary an application at such time, in such manner, and containing such information as the Secretary may require. (3) Evaluation (A) In general Prior to providing a grant under this subsection, the Secretary shall— (i) conduct an evaluation of each project for which an application is received under this subsection; and (ii) assign a quality rating to the project on the basis of the evaluation under clause (i). (B) Requirements In carrying out an evaluation under subparagraph (A), the Secretary shall— (i) consider information on project benefits submitted by the applicant using the template developed under paragraph (1)(B)(i), including how and to what extent the project will address the factors listed in subsection (e); and (ii) consider whether and the extent to which the benefits, including the benefits described in clause (i), are more likely than not to outweigh the total project costs. (C) Data driven process In evaluating projects under this section, the Secretary shall— (i) evaluate each project using a quantitative approach to the extent practical; and (ii) may use all or parts of the methodology required to be developed for large projects in subsection (h). (D) Publication of methodology and ratings The Secretary shall— (i) publish on the Department of Transportation’s website the methodology developed in paragraph (C) to evaluate projects submitted under this section; and (ii) not later than 30 days after announcing an intent to award funds under this section, post on the Department of Transportation’s website any ratings or scores developed for each eligible application that submitted an application. (h) Competitive process, evaluation, and annual report for large projects (1) In general The Secretary shall establish an annual date by which an eligible entity submitting an application for a large project shall submit to the Secretary such information as the Secretary may require, including information described in paragraph (2), in order for a large project to be considered for a recommendation by the Secretary for funding in the next annual report under paragraph (6). (2) Information required The information referred to in paragraph (1) includes— (A) all necessary information required for the Secretary to evaluate the large project; and (B) information sufficient for the Secretary to determine that— (i) the large project meets the applicable requirements under this section; and (ii) there is a reasonable likelihood that the large project will continue to meet the requirements under this section. (3) Notice of determination On making a determination that information submitted to the Secretary under paragraph (1) is sufficient, the Secretary shall provide a written notice of that determination to— (A) the entity that submitted the application; (B) the Committee on Environment and Public Works of the Senate; and (C) the Committee on Transportation and Infrastructure of the House of Representatives. (4) Evaluation The Secretary may recommend a large project for funding in the annual report under paragraph (6) only if the Secretary evaluates the proposed project and determines that the project is justified because the project— (A) addresses a need to eliminate the grade crossing as determined by the Secretary, consistent with the goals of the Program under subsection (b)(2); (B) will generate significant benefits based upon the factors listed in subsection (f); (C) is cost effective based on an analysis of whether the benefits described in subparagraph (B) are expected to outweigh the project costs; and (D) is supported by other Federal or non-Federal financial commitments or revenues adequate to fund completion of the project or project phase. (5) Ratings (A) In general The Secretary shall create a data driven ranking to evaluate, rate, and rank large projects. The Secretary shall develop a methodology that— (i) quantifies numerically each factor listed in subsection (f)(1) to the extent practical; (ii) calculates a numerical safety score based on how the project would improve safety through the factors listed in subsection (f)(1); (iii) evaluates on a 5-point scale (the points of which include high , medium-high , medium , medium-low , and low ) the benefits of the project for each of the factors listed in subsection (f)(2); and (iv) evaluates on a 5-point scale (the points of which include high , medium-high , medium , medium-low , and low ) how each project meets subparagraphs (4)(C) and (4)(D). (B) Overall weighting The Secretary shall develop and publish on the Department of Transportation’s website a methodology that explains how the Secretary will create an overall rating for each project by weighting each rating in subparagraph (A) when awarding grants under this section. The Secretary shall give at least 50 percent weight to the safety score calculated under subparagraph (A)(ii). (C) Prioritization The Secretary shall prioritize funding for those projects scoring highest under subparagraph (B). To be considered justified and receive a recommendation for funding in the annual report under paragraph (6), a project shall receive a satisfactory rating for each rating required under subparagraph (A). The Secretary shall determine and publish what is considered a satisfactory rating for the purposes of this subparagraph. (D) Posting of ratings Not later than 30 days after announcing an intent to award funds under this section, the Secretary shall post on the Department of Transportation’s website the overall ranking and scores, including the score for each metric quantified under paragraph (5)(A), for each eligible large application that submitted an application. (6) Annual report on funding recommendations for large projects (A) In general Not later than the first Monday in February of each year, the Secretary shall submit to the Committees on Transportation and Infrastructure and Appropriations of the House of Representatives and the Committees on Environment and Public Works and Appropriations of the Senate a report that includes— (i) a list of large projects that have requested a recommendation for funding under a new grant agreement from funds anticipated to be available to carry out this subsection in the next fiscal year; (ii) the evaluation under paragraph (4) and ratings under paragraph (5) for each project referred to in subsection (j); and (iii) the grant amounts that the Secretary recommends providing to large projects in the next fiscal year, including— (I) scheduled payments under previously signed multiyear grant agreements under subsection (j); (II) payments for new grant agreements, including single-year grant agreements and multiyear grant agreements; (III) a description of how amounts anticipated to be available for the Program or the President’s budget request for that fiscal year will be distributed; and (IV) for each project for which the Secretary recommends a new multiyear grant agreement under subsection (j), the proposed payout schedule for the project. (B) Limitations The Secretary shall not recommend in an annual report under this paragraph a new multiyear grant agreement unless the Secretary determines that the project can be completed using funds that are anticipated to be available in future fiscal years. (C) Considerations In selecting projects to recommend for funding in the annual report under this paragraph, the Secretary shall— (i) consider the amount of funds available in future fiscal years for multiyear grant agreements as described in subparagraph (B); and (ii) assume the availability of funds in future fiscal years for multiyear grant agreements that extend beyond the period of authorization based on the amount made available for large projects under the Program in the last fiscal year of the period of authorization. (i) Eligible project costs (1) In general A grant received for a project under the Program may be used for— (A) development phase activities, including planning, feasibility analysis, revenue forecasting, environmental review, preliminary engineering and design work, and other preconstruction activities; and (B) construction, reconstruction, rehabilitation, acquisition of real property (including land related to the project and improvements to the land), environmental mitigation, construction contingencies, acquisition of equipment, and operational improvements directly related to improving system performance. (2) Prohibition of a certain limitation The Secretary shall not limit eligible projects from consideration for funding for planning, engineering, environmental, construction, and design elements of the same project in the same application. (j) Multiyear grant agreements for large projects (1) In general A large project that receives a grant under the Program in an amount of not less than $100,000,000 may be carried out through a multiyear grant agreement in accordance with this subsection. (2) Requirements A multiyear grant agreement for a large project described in paragraph (1) shall— (A) establish the terms of participation by the Federal Government in the project; (B) establish the maximum amount of Federal financial assistance for the project in accordance with paragraphs (1) and (2) of subsection (c); (C) establish a payout schedule for the project that provides for disbursement of the full grant amount by not later than 4 fiscal years after the fiscal year in which the initial amount is provided; (D) determine the period of time for completing the project, even if that period extends beyond the period of an authorization; and (E) attempt to improve timely and efficient management of the project, consistent with all applicable Federal laws (including regulations). (3) Special financial rules (A) In general A multiyear grant agreement under this subsection— (i) shall obligate an amount of available budget authority specified in law; and (ii) may include a commitment, contingent on amounts to be specified in law in advance for commitments under this paragraph, to obligate an additional amount from future available budget authority specified in law. (B) Statement of Contingent Commitment The agreement shall state that the contingent commitment is not an obligation of the Federal Government. (C) Interest and other financial costs (i) In general Interest and other financing costs of carrying out a part of the project within a reasonable time shall be considered a cost of carrying out the project under a multiyear grant agreement, except that eligible costs may not be more than the cost of the most favorable financing terms reasonably available for the project at the time of borrowing. (ii) The applicant shall certify to the Secretary that the applicant has shown reasonable diligence in seeking the most favorable financing terms. (4) Advance payment Notwithstanding any other provision of law, an entity carrying out a large project under a multiyear grant agreement— (A) may use funds made available to the entity under this title for eligible project costs of the large project until the amount specified in the multiyear grant agreement for the project for that fiscal year becomes available for obligation; and (B) if the entity uses funds as described in subparagraph (A), the funds used shall be reimbursed from the amount made available under the multiyear grant agreement for the project. (k) Undertaking parts of projects in advance under letters of no prejudice (1) In general The Secretary may pay to an applicant all eligible project costs under the Program, including costs for an activity for an eligible project incurred prior to the date on which the project receives funding under the Program if— (A) before the applicant carries out the activity, the Secretary approves through a letter to the applicant the activity in the same manner as the Secretary approves other activities as eligible under the Program; (B) a record of decision, a finding of no significant impact, or a categorical exclusion under the National Environmental Policy Act of 1969 ( 42 U.S.C. 4321 et seq. ) has been issued for the eligible project; and (C) the activity is carried out without Federal assistance and in accordance with all applicable procedures and requirements. (2) Interest and other financing costs (A) In general For purposes of paragraph (1), the cost of carrying out an activity for an eligible project includes the amount of interest and other financing costs, including any interest earned and payable on bonds, to the extent interest and other financing costs are expended in carrying out the activity for the eligible project, except that interest and other financing costs may not be more than the cost of the most favorable financing terms reasonably available for the eligible project at the time of borrowing. (B) The applicant shall certify to the Secretary that the applicant has shown reasonable diligence in seeking the most favorable financing terms under subparagraph (A). (3) No obligations or influence on recommendations An approval by the Secretary under paragraph (1)(A) shall not— (A) constitute an obligation of the Federal Government; or (B) alter or influence any evaluation under subsections (g)(3)(A)(i) or (h)(4) or any recommendation by the Secretary for funding under the Program. (l) Congressional notification Not later than 30 days before making a grant under the Program, the Secretary shall submit to the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Environment and Public Works of the Senate a written notification of the proposed grant that includes— (1) an evaluation and justification for the eligible project; and (2) the amount of the proposed grant. (m) Reports (1) Annual report Not later than August 1 of each fiscal year, the Secretary shall make available on the website of the Department of Transportation an annual report that lists each eligible project for which a grant has been provided under the Program during the fiscal year. (2) GAO assessment and report Not later than 3 years after the date of enactment of this section, the Comptroller General of the United States shall— (A) conduct an assessment of the administrative establishment, solicitation, selection, and justification process with respect to the funding of grants under the Program; and (B) submit to the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Environment and Public Works of the Senate a report that describes— (i) the adequacy and fairness of the process under which each eligible project that received a grant under the Program was selected; and (ii) the justification and criteria used for the selection of each eligible project. (n) Authorization of appropriations There is authorized to be appropriated $500,000,000 for each of the fiscal years 2022 through 2026 to carry out this section. . (b) Clerical amendment The table of contents for chapter 1 of title 23, United States Code, is amended by inserting after the item relating to section 130 the following: 130A. Railway-highway crossing separation program. .