II 112th CONGRESS 1st Session S. 936 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.

Short title; table of contents

(a)

Short title

This Act may be cited as the American Infrastructure Investment Fund Act of 2011. (b)

Table of contents

The table of contents for 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.

2.

American Infrastructure Investment Fund

(a)

Establishment of Fund

Chapter 3 of title 49, United States Code, is amended— (1)in the table of sections, by adding at the 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. ; and(2)by adding at the end the following: IV

American Infrastructure Investment Fund

361.

Definitions

In this subchapter: (1)

Board

The term Board means the Board of Directors of the Fund appointed pursuant to section 363(b). (2)

Direct loan

The term direct loan has the meaning given the term under section 502(1) of the Congressional Budget Act of 1974 (2 U.S.C. 661a(1)). (3)

Economic competitiveness

The term economic competitiveness means the ability of the economy to more efficiently produce goods and deliver services, including— (A)reductions in travel time of goods and people, including reductions in average delay or the uncertainty of travel time; and (B)net benefits to society through economic benefits attributable to improving the spatial clustering of economic activity. (4)

Eligible project

The term eligible project means a capital project that— (A)advances the objectives of this subchapter; (B)is comprised of activities included in a regional, State, or national plan, either at the time of submission of the application or before the obligation of funds from the Fund; (C)has eligible project costs related to a single project, or has aggregate eligible project costs related to a program of projects that are coordinated to achieve a unified improvement; and (D)is a transportation-related project. (5)

Eligible funding recipient

The term eligible funding recipient— (A)means an entity that has received a financing award from the Fund; (B)shall be— (i)a non-Federal governmental entity, agency, or instrumentality; or (ii)a nongovernmental entity, such as a corporation, partnership, joint venture, or other instrumentality, that seeks funding for an eligible project; and (C)shall have a non-Federal governmental cosponsor of the project if it is a non-governmental entity. (6)

Eligible project cost

The term eligible project cost— (A)includes costs associated with development phase planning and design activities, construction, acquisition, rehabilitation, environmental remediation, interest expense during construction or reconstruction, and reasonable required reserves; and (B)excludes operating costs, research and development costs, and any other costs not otherwise specifically provided for in subparagraph (A). (7)

Executive director

The term Executive Director means the Executive Director of the Fund appointed pursuant to section 363(a)(1). (8)

Fund

The term Fund means the American Infrastructure Investment Fund of the Department of Transportation established under section 362. (9)

Investment plan

The term Investment Plan means a written mutual agreement between the Fund and an applicant that outlines the prospective terms of financial assistance to be invested by the Fund. (10)

Line of credit

The term line of credit means an agreement entered into between the Fund and an eligible funding recipient to provide a direct loan at a future date upon the occurrence of certain events. (11)

Loan guarantee

The term loan guarantee has the meaning given the term under section 502(3) of the Congressional Budget Act of 1974 (2 U.S.C. 661a(3)). (12)

Operating guidance

The term Operating Guidance means the detailed description of the Fund's operating policies and procedures that has been published in accordance with this subchapter. (13)

Qualified application

The term Qualified Application means an application that the Executive Director has certified to have met eligibility and qualification standards under this subchapter. (14)

Rural

The term rural means all population and territory that are not within an Urbanized Area (as such term is defined in the most recent decennial United States census). (15)

Secretary

Except as otherwise specified, the term Secretary means the Secretary of Transportation. (16)

Transportation-related project

The term transportation-related project means a project that is part of, or related to, a transportation improvement, including projects related to the construction or improvement of— (A)a passenger or freight rail line; (B)a highway; (C)a bridge; (D)an airport; (E)an air traffic control system; (F)a port or marine facility; (G)an inland waterway; (H)a transmission or distribution pipeline; (I)public transportation facilities or systems; (J)intercity passenger bus or passenger rail facilities or equipment; or (K)freight rail facilities or equipment.

362.

Establishment of Fund

(a)

Establishment

There is established in the Department of Transportation an entity to be known as the American Infrastructure Investment Fund. (b)

Objectives

(1)

Primary objective

The Fund's primary objective shall be to invest in infrastructure projects that provide measurable improvements to the economic competitiveness of all or part of the United States by increasing or otherwise improving economic output, productivity, or competitive commercial advantage. (2)

Secondary objectives

The Fund's secondary objectives shall be— (A)to provide funding for projects that face significant funding barriers due to problems associated with the need to combine resources across multiple jurisdictions or modes of transportation; (B)to improve the efficiency or throughput of a national or regional transportation network by— (i)improving the integration between networks; or (ii)improving the condition, performance, or long-term cost structure of existing infrastructure; (C)to improve the safety of transportation facilities and systems, as measured by the reduction in risk of transportation-related crashes, injuries, or deaths; and (D)to improve the environmental sustainability of a national or regional transportation network, as measured by— (i)improvement in energy efficiency; (ii)reduction in greenhouse gas and other harmful emissions; (iii)conservation of natural resources; (iv)improvement in water quality; (v)improvement in infrastructure resilience to environmental hazards and natural disasters; and (vi)other beneficial environmental impacts. (c)

Strategy

(1)

In general

The Fund shall advance the objectives set forth in subsection (b) by providing financial assistance for individual projects or programs of related projects identified in State, regional, or national plans and designed to significantly improve national or regional economic competitiveness. (2)

Project portfolio

The Fund shall— (A)target projects or programs of related projects with a demonstrated difficulty in obtaining complete financing through other available public or private sources of funds, for reasons including project complexity, modes, or other comparable transactional barriers; (B)seek to identify appropriate Investment Plans for selected projects and programs of projects; and (C)use Fund resources to build a portfolio of transformational investments that— (i)promotes greater efficiency in the movement of freight or the provision of services; (ii)promotes greater efficiency in the movement of people; (iii)integrates multiple transportation modes in the movement of passengers or freight; (iv)promotes the use of innovation and best practices in the planning, design, development, and delivery of projects, including practices that promote performance-based decision making to achieve national, State, or regional objectives; (v)promotes cross-jurisdictional infrastructure planning and coinvestment among a broad range of participants, including States, tribal governments, municipalities, and public and private investors; and (vi)integrates transportation infrastructure investment planning, such as regional transportation plans, with land-use economic development and other infrastructure Investment Plans. (3)

Investment prospectus

(A)

Publication

Not later than 1 year after the date of the enactment of the American Infrastructure Investment Fund Act of 2011, the Fund shall publish a detailed description of its strategy in an Investment Prospectus that— (i)specifies what will be considered significant to the economic competitiveness of all or part of the United States in a manner consistent with the primary objective set forth in subsection (b)(1); (ii)specifies the priorities and strategic focus of the Fund in— (I)reaching the objectives set forth in subsection (b); and (II)carrying out the Fund strategy described in this subsection; (iii)describes in detail— (I)the framework and methodology for calculating the qualification score assigned under section 364(f)(3); (II)the data to be requested from applicants; and (III)the formula to be applied to such data to calculate the qualification score; (iv)describes how selection criteria will be applied by the Fund to determine the competitiveness of an application and its qualification score relative to other current applications and previously funded applications; and (v)describes how the qualification score methodology and project selection framework are consistent with maximizing the Fund's goals in urban and rural areas. (B)

Updates

Not later than 2 years after the original publication of the Investment Prospectus, and biennially thereafter, the Fund shall publish an updated Investment Prospectus. (C)

Approval

The Fund may not publish the Investment Prospectus or any subsequent updates under subparagraph (B) until the Board has approved the Investment Prospectus by a majority vote. (4)

Operating guidance

(A)

Publication

Not later than 1 year after the date of the enactment of the American Infrastructure Investment Fund Act of 2011, the Fund shall establish and publish its Operating Guidance for the management of the Fund, which shall— (i)establish general operating procedures to be followed by the Fund in carrying out its authorities under this subchapter; (ii)establish criteria, requirements, and standards regarding the provisions of various forms of assistance authorized under this subchapter, including the various forms and terms of credit assistance that are consistent with the requirements under this subchapter; (iii)establish an application and award process for Planning and Feasibility Loans in accordance with the provisions under this subchapter; (iv)establish disclosure and application procedures for nominating or otherwise proposing applications for project assistance, either solicited or unsolicited, that are consistent with the requirements under this subchapter; (v)describe in detail the form and timing of data and other information required of applicants in conjunction with consideration of an application for financial assistance under this subchapter; and (vi)establish a schedule of regular time intervals for the submission for consideration of sets of 1 or more Investment Plans to the Board. (B)

Review and update

The Fund shall periodically review, and may update, the Operating Guidance published under subparagraph (A). (5)

Rulemaking

Paragraphs (3) and (4) shall be carried out in accordance with the rulemaking procedures set forth in section 553 of title 5, United States Code.

363.

Organizational structure and duties

(a)

Executive Director

(1)

Appointment; authority

The President shall appoint, by and with the advice and consent of the Senate, an Executive Director, who shall be the chief executive officer of the Fund, and shall have such executive functions, powers, and duties as set forth in this subchapter or prescribed by the Board. (2)

Supervision

The Executive Director shall be subject to the supervision and direction of the Secretary of Transportation, consistent with the Executive Director's duties under this subchapter and other requirements set forth in the Operating Guidance referred to in section 362(c)(4). (3)

Qualifications

The Executive Director shall have demonstrated expertise in at least 2 of the following 3 areas: (A)Economic analysis. (B)Project, public, or corporate finance. (C)Organizational management. (4)

Term of service; vacancy

The Executive Director shall serve a 5-year term, which may be renewed in accordance with paragraph (1). A vacancy in the position of Executive Director shall be filled as expeditiously as possible in the manner in which the original appointment was made. (5)

Duties

In addition to the other activities required to carry out the authorities and purposes of the Fund under this subchapter, the Executive Director shall— (A)be responsible for the day-to-day operations of the Fund; (B)establish and approve the Operating Guidance in accordance with section 362(c)(4); (C)hire and supervise a staff of qualified transportation infrastructure planning professionals that will— (i)establish and maintain a project application origination capability at the Fund; (ii)conduct a nationwide search for projects that promote the strategy set forth in the most recently published Investment Prospectus; and (iii)solicit applications from eligible funding recipients to finance projects described in clause (ii); (D)hire and supervise a staff of qualified economics professionals that will— (i)establish and maintain an analysis capability at the Fund; (ii)collect and analyze application data; and (iii)report to the Executive Director on qualification scores, measures of uncertainty, and other analyses of applications; (E)hire and supervise a staff of qualified project finance professionals that will— (i)establish and maintain an investment planning process capability at the Fund; (ii)review qualified applications; and (iii)structure Investment Plans; and (F)hire and supervise a staff of qualified project management professionals that will— (i)establish and maintain a technical assistance capability at the Fund; (ii)assist those entities receiving funding from the Fund in the successful execution of their Investment Plans; and (iii)otherwise implement the funding decisions of the Secretary. (b)

Board of Directors

(1)

Establishment

There is established within the Fund a deliberative body to be known as the Board of Directors. (2)

Membership

The Board shall be composed of 7 members, including— (A)the Secretary of the Treasury, the Secretary of Commerce, and the Secretary of Energy, who shall serve as permanent members; and (B)4 executives of the Department of Transportation appointed by the Secretary, of whom— (i)not more than 2 shall serve concurrently as— (I)the Deputy Secretary; (II)the Under Secretary of Transportation for Policy; (III)the General Counsel; (IV)the Chief Financial Officer; (V)the Assistant Secretary of Transportation for Policy; or (VI)the Assistant Secretary of Transportation for Aviation and International Affairs; and (ii)not more than 2 shall serve for not longer than 2 years, while concurrently serving as— (I)the Administrator of the Federal Aviation Administration; (II)the Administrator of the Federal Highway Administration; (III)the Administrator of the Federal Railroad Administration; (IV)the Administrator of the Federal Transit Administration; (V)the Administrator of the Maritime Administration; (VI)the Administrator of the Pipeline and Hazardous Materials Safety Administration; or (VII)the Administrator of the Federal Motor Carrier Safety Administration. (3)

Duties

The Board shall— (A)not later than 180 days after the date of the enactment of the American Infrastructure Investment Fund Act of 2011, establish and approve the Investment Prospectus, in consultation with the Fund Advisory Committee; (B)on each biennial anniversary of its original publication, update the Investment Prospectus, in consultation with the Fund Advisory Committee; (C)review Investment Plans, related application materials, and other analyses provided to the Board by the Executive Director; (D)determine by majority vote whether or not to recommend Investment Plans submitted by the Executive Director to the Secretary; and (E)certify reports to Congress and other publications of the Fund. (4)

Majority vote required

Each action or decision by the Board shall be by majority vote of all members, whether in person or in absentia. Each member shall be provided a reasonable opportunity to vote on all matters before the Board. (c)

Fund Advisory Committee

(1)

Establishment

Not later than 180 days after the date of the enactment of the American Infrastructure Investment Fund Act of 2011, the President shall establish an advisory committee, to be known as the Fund Advisory Committee. (2)

Membership

(A)

Appointment

The President shall appoint not fewer than 5 people and not more than 7 people to serve 3-year terms as members of the Fund Advisory Committee, including 1 member to serve as Chair of the Committee. (B)

Qualifications

Each member shall have expertise in— (i)economics and economic analysis; (ii)project or fund management; (iii)portfolio or fund management; (iv)organized labor interests; (v)environmental interests; (vi)American business and trade interests; (vii)rural community and economic development; (viii)metropolitan economic development and clustering of economic development; (ix)State Department of Transportation or Metropolitan Planning Organization policies and priorities; or (x)other infrastructure planning, redevelopment, and development-related codes and policies. (C)

Representation

The President shall ensure that the membership of the Fund Advisory Committee— (i)is bipartisan; (ii)is geographically and economically balanced; and (iii)is balanced in terms of the functions to be performed by the Fund Advisory Committee. (3)

Advice

The Fund Advisory Committee shall advise the Board and the Secretary with respect to— (A)the alignment of the Investment Prospectus with the primary and secondary objectives, and other elements of the Fund strategy described in section 362(c); (B)the alignment of the framework and methodology used to determine qualification scores and uncertainty estimates with the primary objective, secondary objectives, and the Fund strategy; (C)the consistency of the calculation of qualification scores and uncertainty estimates with academic standards for analytical rigor and data quality typically applied to peer-reviewed research; (D)the alignment of investment decision mechanics and outcomes with the Investment Prospectus and the requirements under this subchapter; (E)the integrity and effectiveness of Fund operations and performance, including application evaluation processes, Investment Plan processes and determinations, and the optimization of the Fund's performance as a portfolio; and (F)prospects for the extension of the Fund's activities to nontransportation infrastructure sectors likely to benefit the United States, including renewable energy generation, energy transmission and storage, energy efficiency, drinking water and wastewater systems, and telecommunications. (4)

Applicability of FACA

The Fund Advisory Committee shall be subject to the Federal Advisory Committee Act (5 U.S.C. App.).

364.

Fund authorities and assistance

(a)

Agreements with other organizations

The Fund may— (1)enter into an agreement with any organization within the Department of Transportation to obtain necessary technical expertise and assistance; and (2)may request any Federal agency to detail employees to the Fund for purposes of carrying out its duties under this subchapter. (b)

Fees for services

(1)

Administrative fees

The Fund may establish and collect fees from eligible funding recipients, including application and processing fees and other fees associated with the costs of loan servicing, at a level sufficient to cover all or a portion of the administrative costs to the Federal Government of providing funding assistance and servicing the credit instruments entered into under this subchapter. (2)

Other fees

The Fund may establish and collect fees from eligible funding recipients at a level sufficient to cover all or a portion of the costs of expert firms, including counsel in the field of municipal and project finance, and financial advisors to assist with underwriting, credit analysis, or other independent reviews, as appropriate. (3)

Limitation

The Fund may not collect fees under paragraph (1) or (2) that originate as a loan or a debt obligation guaranteed by the Federal Government. (4)

Availability of amounts

Amounts collected under paragraphs (1) and (2) shall be available to be expended to carry out the duties under this subchapter. (c)

Planning and feasibility loans

(1)

In general

The Fund may provide loans, which may be forgivable, to eligible funding recipients to fund activities related to the planning, preparation, or design of an eligible project proposal, including costs associated with— (A)planning and formulating optimal project design; (B)assessing project technical feasibility; and (C)assessing potential project performance. (2)

Loan program criteria

In providing loans under this subsection, the Fund shall give priority to activities that are likely to lead to projects that— (A)advance the objectives set forth in section 362(b); and (B)are consistent with the strategy described in section 362(c). (3)

Federal share

The Fund may enter into a loan agreement with an eligible recipient in which the Fund agrees to pay up to 100 percent of eligible planning and feasibility costs of an eligible project under this subsection. (4)

Eligible costs

Loan amounts received under this subsection may be used for— (A)any activity reasonably necessary to obtain Federal, State, and local permits, licenses, and approvals for an eligible project, including— (i)concept development and preliminary design; (ii)economic and environmental analyses; and (iii)application, licensing, and permit fees. (B)the preparation of financial analyses and other economic analyses that are reasonably necessary to secure funding to implement an eligible project. (5)

Alignment with investment prospectus

The Fund may not provide a loan for a project under this subsection unless the application materials demonstrate that the eligible project is aligned with the strategy outlined in the Investment Prospectus. (6)

Designation for receipt of certain funds

If a non-Federal governmental entity, agency, or instrumentality is carrying out the planning and feasibility activities, the eligible funding recipient may designate such entity, agency, or instrumentality to receive loan amounts for such activities directly from the Fund. (d)

Direct loans and loan guarantees

(1)

Direct loans

(A)

Agreements

The Fund is authorized to make direct loans to eligible funding recipients for eligible projects on such terms and conditions, and containing such covenants, representations, warranties, and requirements, including required audits, as the Fund determines appropriate, in accordance with the provisions under this subchapter, the Operating Guidance, and all other statutory and regulatory requirements. (B)

Approved investment plan

Direct loans made under this paragraph— (i)may only be used to fund eligible project costs covered in an Investment Plan approved by the Secretary; and (ii)are subject to the terms and conditions of the approved Investment Plan. (C)

Terms, conditions, and limitations

Direct loans made under this paragraph will be on such terms, conditions, and limitations as the Executive Director may prescribe, except that— (i)the Fund may not provide credit assistance to any prospective borrower unless such assistance— (I)is necessary to alleviate a credit market imperfection; or (II)is necessary to achieve specified Federal objectives by providing credit assistance; and (III)is the most efficient way to meet such objectives on a borrower-by-borrower basis; (ii)loans made under this paragraph may not be subordinated (unless such subordination is necessary to achieve Federal objectives, consistent with the criteria and policies set forth in the Operating Guidance) to— (I)another debt contracted by the borrower; or (II)any other claims against the borrower in the case of default; (iii)direct loans or interest supplements on loan guarantees shall be at an interest rate that is set by reference to a benchmark interest rate (yield) on marketable Treasury securities with a similar maturity to the direct loans being made or the non-Federal loans being guaranteed, and includes any necessary credit risk premium at a level consistent with the interest rate policy set forth in the Operating Guidance; (iv)the Executive Director— (I)shall prescribe explicit standards for use in periodically assessing the credit risk of new and existing direct loans and guaranteed loans; and (II)may not extend credit assistance without determining that there is a reasonable assurance of repayment; (v)new direct loans may not be obligated and new loan guarantees may not be committed except to the extent that appropriations of budget authority to cover their costs are made in advance, as required under section 504 of the Federal Credit Reform Act of 1990 (2 U.S.C. 661c); (vi)the total principal amount of the direct loan or loan guarantee may not exceed— (I)the lower of 70 percent of total eligible project cost less the percentage of eligible project costs that are otherwise funded by the Fund; or (II)another level prescribed in the Operating Guidance; and (vii)notwithstanding any other provision of law relating to the acquisition, handling, or disposal of property by the Federal Government, the Fund may complete, recondition, reconstruct, renovate, repair, maintain, operate, or sell any property acquired by the Fund under this subchapter. (D)

Repayment

(i)

Policies

The Fund shall— (I)adhere to the policies set forth in the Operating Guidance concerning repayment terms; and (II)establish repayment terms for each direct loan based on the projected cash flow from project revenues or other repayment sources. (ii)

Maturity date

The final maturity date of a direct loan under this paragraph— (I)shall not exceed 90 percent of the estimated useful economic life of the asset being financed, except under conditions set forth in the Operating Guidance; and (II)may not be later than the estimated useful economic life of the asset being financed. (E)

Risk assessment

Before entering in any agreement under this section, the Executive Director shall complete a risk assessment of the project to be funded. Requirements for risk assessment shall be outlined in the Operating Guidance. (2)

Loan guarantees

(A)

In general

The Fund is authorized to provide loan guarantees to eligible funding recipients on such terms and conditions and containing such covenants, representations, warranties, and requirements (including required audits) as the Fund determines appropriate, in accordance with the provisions under this subchapter, the Operating Guidance, and all other statutory and regulatory requirements. (B)

Approved investment plan

Loan guarantees provided under this paragraph— (i)may only cover eligible project costs in an approved Investment Plan; and (ii)are subject to the terms and conditions of the approved Investment Plan. (C)

Terms, conditions, and limitations

(i)

In general

The terms, conditions, and limitations of a guaranteed loan shall comply with the terms, conditions, and limitations set forth in paragraph (1) for a direct loan, including maximum Fund share requirements, except that the interest rate on the guaranteed loan and any repayment features shall be negotiated between the eligible funding recipient and the lender in accordance with the policies set forth in the Operating Guidance, and with the consent of the Secretary. (ii)

Income excluded

A loan may not be guaranteed under this paragraph if— (I)the income from such loan is excluded from gross income for the purposes of chapter 1 of the Internal Revenue Code of 1986; or (II)the guarantee provides significant collateral or security, as determined by the Executive Director, for other obligations generating income that is similarly excluded. (iii)

Fees

Fees or premiums for a loan guarantee or insurance coverage shall be set at levels that minimize the cost to the Government (as defined in section 502(5) of the Federal Credit Reform Act of 1990 (6 U.S.C. 661a(5))) of such coverage, while supporting achievement of the program's objectives, in accordance with policies set forth in the Operating Guidance. (iv)

Percent guaranteed

A loan guarantee under this paragraph may not exceed 80 percent of the loss of the loan. Borrowers who pose less of a risk shall receive a lower guarantee as a percentage of the loan amount. (v)

Criteria

A loan may not be guaranteed under this paragraph unless the Executive Director determines that— (I)the lender is responsible; and (II)adequate provision is made for servicing the loan on reasonable terms. (vi)

Conclusive evidence

Any guarantee shall be conclusive evidence that— (I)such guarantee has been properly obtained; (II)the underlying loan qualified for such guarantee; and (III)such guarantee is presumed to be valid, legal, and enforceable, unless such guarantee was obtained through fraud or material misrepresentation by the holder. (vii)

Effect of default

If, as a result of a default by a borrower under a guaranteed loan, after the holder of the loan has made such further collection efforts and instituted such enforcement proceedings as the Executive Director may require, the Executive Director determines that the holder has suffered a loss, the Executive Director— (I)shall pay to the holder not more than 80 percent of such loss, as specified in the guarantee contract; (II)upon making such payment, shall be subrogated to all the rights of the recipient of the payment; and (III)shall be entitled to recover from the borrower the amount of any payments made pursuant to any guarantee entered into under this paragraph. (viii)

Enforcement

The Attorney General shall take such action as may be appropriate to enforce any right accruing to the United States as a result of the issuance of any loan guarantee under this paragraph. (ix)

Savings provision

Nothing in this paragraph may be construed to preclude any forbearance for the benefit of the borrower, which may be agreed upon by the Executive Director, if budget authority for any resulting modification cost (as defined under section 502 of the Congressional Budget Act (6 U.S.C. 661a)) is available. (D)

Repayment

The Fund shall adhere to policies set forth in the Operating Guidance concerning repayment terms and shall establish repayment terms for each direct loan based on the projected cash flow from project revenues or other repayment sources. (E)

Risk assessment

Requirements for risk assessment shall be outlined in the Operating Guidance. (e)

Application evaluation and qualification

(1)

Application eligibility standard

An application for financial assistance from the Fund may not be considered unless— (A)funding recipient or recipients, project or program of related projects, and associated project costs identified in the application are eligible for such funding under this subchapter; (B)eligible project costs identified in the application— (i)are greater than $50,000,000; or (ii)if the application is for a project or program of related projects located entirely in a rural area, are greater than $10,000,000; (C)the application identifies financial assistance from sources outside of the Fund equal to at least 30 percent of the total eligible project costs; (D)the application identifies project benefits that are distributed broadly, either at a national or a regional level; and (E)the applicant is not ineligible to receive Federal loans, loan guarantees, or insurance due to a delinquency on Federal tax or non-tax debts, including judgment liens against property for a debt to the Federal Government. (2)

Resolution of debts

The Fund shall use credit bureaus as a screening tool and ask applicants about delinquencies described in paragraph (1)(E) on the application form. An application from an applicant that is delinquent on a debt to the Federal Government may not be processed until after the applicant satisfactorily resolves the debts in compliance with section 3720B of title 31, United States Code, and section 285.13 of title 31, Code of Federal Regulations. (3)

Qualification score

(A)

Assignment

The Fund shall assign to each eligible application a single numerical factor, which shall be— (i)based upon an evaluation of the information and data collected from the applicant; (ii)referred to as the qualification score; and (iii)equal to the ratio between the present value of benefits to the present value of costs reasonably expected to result from the funding of the project or projects proposed in the application. (B)

Calculation

The calculation of the qualification score shall be determined through a consistently and transparently applied analytic and systematic framework. In order to indicate the potential uncertainty of the qualification score, the Fund shall use a measure of the uncertainty of expected project benefits and costs to derive a range of ratio values with the qualification score as the midpoint of that range. (C)

Methodology

The methodology used to calculate the qualification score and uncertainty measures shall— (i)apply equal weighting to all measures of the net present value of benefits and costs; (ii)include standardized measures of the expected uncertainty in both total and specific benefits and costs associated with the project; and (iii)include a descriptive statement delineating the significant factors and analysis that went into determination of the score and the range. (D)

Publication

(i)

Investment prospectus

The methodology of the framework for calculating the qualification score, including the specific mechanics of its calculation, shall be published in the Investment Prospectus. (ii)

Methodology

The quantification score, the methodology used to calculate the qualification score, the calculation of the qualification score, and the measure of uncertainty shall be— (I)provided to the applicant not later than 15 days after their final determination; and (II)published on the Fund's website not later than 30 days after their final determination. (4)

Application certification

The Executive Director may not certify an application as qualified for financial assistance on the basis of an evaluation of the information and data collected from the applicant unless the Executive Director determines that the application's qualification score— (A)has been calculated on the basis of data, estimates, and assumptions that are defensible according to accepted standards of economic analysis; (B)appears valid based on efforts by the Fund to conduct due diligence and verification; (C)is greater than the threshold for qualification published in the Investment Prospectus; and (D)is competitive with scores issued to applications currently under consideration and scores issued to applications previously funded under this section, after taking into account the extent to which the application under consideration, in order of priority— (i)advances the objectives of the Fund set forth in section 362(b); (ii)addresses a special infrastructure investment challenge due to cost, complexity, cross-jurisdictional scope, multi-modal features, or the use of innovative technologies; (iii)provides a cost-effective approach to achieving the benefits described in the application relative to alternative approaches to achieving comparable benefits, after taking into account the estimated uncertainty in measures of costs and benefits associated with the project; (iv)combines amounts received from the Fund with other revenue sources to leverage substantial co-investment from non-Federal sources; (v)delivers revenue streams from public or private sources dedicated to pay debt service, meet ongoing operating expenses, or provide for needed maintenance and capital renewal over the life cycle of the funded asset; and (vi)encourages the use of innovative procurement, asset management, or financing to optimize the all-in-life-cycle cost-effectiveness of a project. (f)

Investment plans

(1)

Qualified application requirement

After an application is certified by the Executive Director as qualified under subsection (e)(4), the Executive Director and the applicant shall enter a process for producing a mutually agreeable Investment Plan. Financial assistance may not be provided to an applicant under this section unless the applicant's Investment Plan has been recommended by the Board and approved by the Secretary. (2)

Investment planning process

The Fund shall establish an investment planning process for determining the level, form, and terms of financial assistance to be offered by the Fund, including a mutually agreeable financing package that— (A)is adequate to fund the project or projects included in the application; (B)maximizes total expected project benefits relative to total expected costs; and (C)considers the portion of total costs to be financed by the Fund. (3)

Considerations

When considering the appropriate level and form of Fund resources to include in an Investment Plan, the Fund shall— (A)consider the qualification score achieved by the application relative to other current applications and previously funded applications; (B)strive to make investment plan decisions on the basis of maximizing total net benefits relative to cost; and (C)consider— (i)the amount of Fund budgetary resources required to complete a financing package; (ii)the percentage of Federal resources included in the Investment Plan in the form of grants; (iii)the level of certainty of the proposed net benefits, including the risks to the Federal taxpayer and the project sponsor in the event of project cost overrun or failure; and (iv)the percentage of eligible project costs to be funded through non-Federal resources pledged by the applicant to complete a financing package. (4)

Investment plans

As part of the investment planning process— (A)the Fund shall have the sole discretion to determine the terms of assistance to be offered to applicants, subject to the provisions under this subchapter, the availability of funding, and any other statutory and regulatory requirements; (B)if the Fund and the applicant are able to reach mutually agreeable terms, the Fund shall record the determination on Fund assistance and the details of the complete financing package in an Investment Plan; (C)the Fund may not approve an Investment Plan that does not identify a complete financing package; and (D)the Fund is not required or compelled to reach agreement on an Investment Plan. (5)

Submission to board

The Executive Director shall advance Investment Plans for qualified applications to the Board at regular submission intervals, as set forth in the Operating Guidance. (6)

Conflict of interest protections

The Secretary of Transportation and the Fund shall jointly establish, in operating procedures and in the Operating Guidance, communications practices and compliance procedures that protect professional staff of the Fund who are responsible for negotiating Investment Plans from outside or otherwise inappropriate influence, and conflicts of interest, including necessary restrictions on communications between staff of the Fund who are responsible for the investment planning process and individuals and organizations within and outside the Department of Transportation, including— (A)the Board; (B)the Office of the Secretary; (C)the Secretary; and (D)others needed to safeguard the ability of the Fund to fairly and independently formulate Investment Plans under this subsection. (g)

Funding decisions

(1)

Investment plan submission requirement

The Board may not consider recommending an application for funding before receiving an Investment Plan from the Executive Director. (2)

Application funding recommendation

Not later than 15 days after receiving an Investment Plan from the Executive Director, the Board shall— (A)vote on whether to recommend funding for the Investment Plan; (B)notify the Secretary of the outcome of such vote; and (C)if funding is recommended, forward the Investment Plan to the Secretary for approval. (3)

No modification

Neither the Board nor the Secretary may modify any Investment Plan. (4)

Funding consideration

(A)

Determination

After considering an Investment Plan recommended by the Board, the Secretary shall approve or reject the Investment Plan. (B)

Approval

If the Investment Plan is approved by the Secretary, it shall be funded in accordance with the provisions of the Investment Plan. (C)

Rejection

If the Investment Plan is rejected by the Secretary, the Investment Plan— (i)shall be returned to the Executive Director with a detailed justification for rejecting the Investment Plan, which shall be forwarded to the applicant; and (ii)may be reconsidered by the Fund not earlier than 1 year after such date of return. (h)

Project sponsorship; public benefit analysis; legal compliance

(1)

Compliance with applicable laws

(A)

In general

Subject to subparagraphs (B) and (C), the Fund shall determine which requirements under chapter 53 of this title or title 23 shall be applicable to projects receiving financial assistance under this subchapter that would otherwise be eligible for financial assistance under such chapter or title. (B)

Labor standards

Labor standards under chapter 53 of this title and title 23 shall be applicable to projects described in subparagraph (A), including— (i)applicable employee protective arrangement under section 5333(b); (ii)the requirement that all laborers and mechanics employed by contractors or subcontractors on construction work performed on the projects be paid wages at rates not less than those prevailing on similar construction in the locality, as determined by the Secretary of Labor under subchapter IV of chapter 31 of title 40, United States Code (except for section 3145). (C)

Planning and environmental laws

A project that receives financial assistance under this subchapter shall comply with— (i)the applicable planning and programming requirements under section 134 and 135 of title 23; and (ii)all applicable environmental laws and requirements, including the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and the National Historic Preservation Act of 1966 (16 U.S.C. 470 et seq.). (2)

Lead agency

(A)

In general

The Department of Transportation shall be the Federal lead agency in the environmental review process for a project that receives financial assistance under this subchapter. Subject to subparagraphs (B) through (D), the Secretary of Transportation may delegate this responsibility to an operating administration. (B)

Joint lead federal agency

Nothing in this paragraph precludes another Federal agency from being a joint lead agency in accordance with the regulations adopted by the President's Council on Environmental Quality. (C)

Joint lead state agency

A non-Federal government entity, agency, or instrumentality receiving funds under this subchapter may— (i)serve as a joint lead agency with the Department of Transportation under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.); and (ii)at the discretion of the lead Federal agency, prepare any environmental document required in support of the project if the lead Federal agency— (I)furnishes guidance in such preparation; and (II)independently evaluates, approves, and adopts the State or local government's environmental documentation before taking any action on the project. (D)

Nongovernmental funding recipients

If a project is undertaken by a nongovernmental entity, the non-Federal government entity, agency, or instrumentality cosponsor of the project shall— (i)serve as a joint lead agency with the Department; and (ii)have the authority to prepare the environmental documents described in subparagraph (C)(ii). (3)

Determination of applicable modal requirements

If a project has cross-modal components, the Fund may designate the specific requirements that shall apply to the project. (i)

Investment-Grade rating requirement

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

365.

Studies and reports

(a)

Annual financial audit

(1)

In general

The Fund shall be subject to an annual financial audit by an independent public accounting firm selected by the Board to ensure that its operations meet generally accepted accounting principles. (2)

Dissemination

The Fund shall— (A)submit the results of each audit under paragraph (1) to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives; and (B)post such audit results on the Fund’s website. (b)

Annual performance evaluation

(1)

In general

The Comptroller General shall conduct an annual assessment— (A)to evaluate the Fund’s overall performance; and (B)to determine the effectiveness of the Fund at meeting its objectives and strategy. (2)

Dissemination

The Comptroller General shall submit a report containing the results of the evaluation conducted under paragraph (1) to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives. (c)

Semiannual report

The Executive Director shall post semiannual reports on the Fund’s website that describe the Fund’s activities, including— (1)the status of applications received; (2)the outcome of application evaluations; (3)the outcome of investment planning processes; (4)the status of Investment Plans submitted to the Board; and (5)the status of financial assistance awards approved by the Secretary. (d)

Biannual report

(1)

In general

Every 2 years after the date of the enactment of the American Infrastructure Investment Fund Act of 2011, the Board, in consultation with the Director of the Office of Management and Budget and the Fund Advisory Committee, shall prepare a report that— (A)evaluates the Fund's performance; (B)includes an assessment of the Fund as a model for infrastructure investment; and (C)may include a recommendation on whether to extend the Fund's activities to nontransportation infrastructure sectors likely to benefit the United States, including— (i)renewable energy generation; (ii)energy transmission and storage; (iii)energy efficiency; (iv)drinking water and wastewater systems; (v)telecommunications; and (vi)other infrastructure activities. (2)

Dissemination

The Board shall— (A)submit the report prepared under paragraph (1) to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives; and (B)post the report on the Fund's website. (e)

Investment plan and decisions

Not later than 90 days after the Board's decision on an Investment Plan, the Fund Advisory Committee shall post a report on the Fund's website that assesses— (1)the adherence of each funding decision to the requirements of the Investment Prospectus, Operating Guidance, and this subchapter; (2)the consistency of funded applications with the primary objective, the secondary objectives, the Fund strategy, and the requirements under this subchapter; (3)the validity of the qualification certification of each funded application; (4)the return on Federal investment likely to result from each funded Investment Plan; and (5)the return on total investment likely to result from each funded Investment Plan.

. (b)

Authorization of appropriations

(1)

Amounts authorized

(A)

In general

There are authorized to be appropriated to carry out subchapter IV of chapter 3 of title 49, United States Code, as added by subsection (a), $5,000,000,000 for each of the fiscal years 2012 and 2013. (B)

Availability of funds

Amounts made available under subparagraph (A) shall remain available until expended. (2)

Administrative expenses

Of the amounts appropriated pursuant to paragraph (1), the Fund may expend, to pay the reasonable costs of administering such subchapter IV, inclusive of any fees collected pursuant to such subchapter— (A)not more than $50,000,000 in fiscal year 2012; and (B)not more than $51,000,000 in fiscal year 2013.

3.

National infrastructure investment grants

(a)

Establishment of program

Chapter 55 of title 49, United States Code, is amended by adding at the end the following: III

Financial assistance

5581.

National infrastructure investment grants

(a)

Establishment of program

The Secretary of Transportation shall establish a competitive grant program to provide financial assistance for projects that will have a significant impact on the Nation, a metropolitan area, or a region. (b)

Eligible projects

An applicant is eligible for a grant under this section for a project that is part of, or related to, a transportation improvement, including projects related to the construction or improvement of— (1)a passenger or freight rail line; (2)a highway; (3)a bridge; (4)an airport; (5)an air traffic control system; (6)a port or marine facility; (7)an inland waterway; (8)a transmission or distribution pipeline; (9)public transportation facilities or systems; (10)intercity passenger bus or passenger rail facilities or equipment; (11)freight rail facilities or equipment; or (12)planning, preparation, or design of any project described in paragraphs (1) through (11). (c)

Project selection criteria

In determining whether to award a grant to an eligible applicant under this section, the Secretary shall consider the extent to which the project— (1)leverages Federal investment by encouraging non-Federal contributions to the project, including contributions from public-private partnerships; (2)improves the mobility of people, goods, and commodities; (3)incorporates new and innovative technologies, including intelligent transportation systems; (4)improves energy efficiency or reduces greenhouse gas emissions; (5)helps maintain or protect the environment, including reducing air and water pollution; (6)reduces congestion; (7)improves the condition of transportation infrastructure, including bringing it into a state of good repair; (8)improves safety, including reducing transportation accidents, injuries, and fatalities; (9)demonstrates that the proposed project cannot be readily and efficiently realized without Federal support and participation; and (10)enhances national or regional economic development, growth, and competitiveness. (d)

Priority

The Secretary shall give priority to projects that have the highest system performance improvement relative to their benefit-cost analysis. (e)

Letters of intent

(1)

In general

The Secretary may issue a letter of intent to an applicant announcing an intention to obligate, for a major capital project under this subsection, an amount from future available budget authority specified in law that is not more than the amount stipulated as the financial participation of the Secretary in the project. (2)

Notification

Not later than 30 days before issuing a letter under paragraph (1), the Secretary shall submit written notification of the proposed letter or agreement to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives, which shall include— (A)a copy of the proposed letter or agreement; (B)the criteria used under subsection (c) for selecting the project for a grant award; and (C)a description of how the project meets such criteria. (3)

Commitment

An obligation or administrative commitment may be made only when amounts are made available. The letter of intent shall state that the contingent commitment is not an obligation of the Federal Government, and is subject to the availability of funds under Federal law and to Federal laws in force or enacted after the date of the contingent commitment. (f)

Federal share of net project cost

(1)

In general

The Federal share of a grant for the project shall not exceed 80 percent of the project net capital cost. (2)

Estimate

The Secretary shall estimate the net project cost based on engineering studies, studies of economic feasibility, and information on the expected use of equipment or facilities. (3)

Priority

The Secretary shall give priority in allocating future obligations and contingent commitments to incur obligations to grant requests seeking a lower Federal share of the project net capital cost. (g)

Cooperative agreements

(1)

In general

An applicant may enter into an agreement with any public, private, or nonprofit entity to cooperatively implement any project funded with a grant under this subchapter. (2)

Forms of participation

Participation by an entity under paragraph (1) may consist of— (A)ownership or operation of any land, facility, vehicle, or other physical asset associated with the project; (B)cost-sharing of any project expense or non-Federal share of the project cost, including in kind contributions; (C)carrying out administration, construction management, project management, project operation, or any other management or operational duty associated with the project; and (D)any other form of participation approved by the Secretary. (h)

Oversight program

(1)

Establishment

(A)

In general

The Secretary shall establish an oversight program to monitor the effective and efficient use of funds authorized to carry out this section. (B)

Minimum requirement

At a minimum, the program shall be responsive to all areas relating to financial integrity and project delivery. (2)

Financial integrity

(A)

Financial management systems

The Secretary shall perform annual reviews that address elements of the applicant's financial management systems that affect projects approved under subsection (a). (B)

Project costs

The Secretary shall develop minimum standards for estimating project costs and shall periodically evaluate the practices of applicants for estimating project costs, awarding contracts, and reducing project costs. (3)

Project delivery

The Secretary shall perform annual reviews that address elements of the project delivery system of an applicant, which elements include one or more activities that are involved in the life cycle of a project from conception to completion of the project. (4)

Responsibility of the applicants

(A)

In general

Each applicant shall submit to the Secretary for approval such plans, specifications, and estimates for each proposed project as the Secretary may require. (B)

Applicant subrecipients

The applicant shall be responsible for determining that a subrecipient of Federal funds under this section has— (i)adequate project delivery systems for projects approved under this section; and (ii)sufficient accounting controls to properly manage such Federal funds. (C)

Periodic review

The Secretary shall periodically review the monitoring of subrecipients by the applicant. (5)

Specific oversight responsibilities

Nothing in this section shall affect or discharge any oversight responsibility of the Secretary specifically provided for under this title or other Federal law. (i)

Major projects

(1)

In general

A recipient of a grant for a project under this section with an estimated total cost of $500,000,000 or more, and a recipient for such other projects as may be identified by the Secretary, shall submit to the Secretary for each project— (A)a project management plan; and (B)an annual financial plan. (2)

Project management plan

A project management plan shall document— (A)the procedures and processes that are in effect to provide timely information to the project decision makers to effectively manage the scope, costs, schedules, quality of, and the Federal requirements applicable to, the project; and (B)the role of the agency leadership and management team in the delivery of the project. (3)

Financial plan

A financial plan shall— (A)be based on detailed estimates of the cost to complete the project; and (B)provide for the annual submission of updates to the Secretary that are based on reasonable assumptions, as determined by the Secretary, of future increases in the cost to complete the project. (j)

Other projects

A recipient of Federal financial assistance for a project under this title with an estimated total cost of $100,000,000 or more that is not covered by subsection (i) shall prepare an annual financial plan. Annual financial plans prepared under this subsection shall be made available to the Secretary for review upon the request of the Secretary. (k)

Other terms and conditions

The Secretary shall determine what additional grant terms and conditions are necessary and appropriate to meet the requirements of this section. (l)

Regulations

Not later than 1 year after the date of the enactment of the American Infrastructure Investment Fund Act of 2011, the Secretary shall prescribe regulations to implement this section. (m)

Applicant defined

In this subchapter, the term applicant includes a State, a political subdivision of a State, government-sponsored authorities and corporations, and the District of Columbia. (n)

Secretarial oversight

(1)

Construction management contracts

The Secretary may use not more than 1 percent of amounts made available in a fiscal year for capital projects under this subchapter to enter into contracts to oversee the construction of such projects. (2)

Compliance reviews

The Secretary may use amounts available under paragraph (1) to make contracts for safety, procurement, management, and financial compliance reviews and audits of a recipient of amounts under paragraph (1). (3)

Federal costs

The Federal Government shall pay the entire cost of carrying out a contract under this subsection. (o)

Performance evaluation

(1)

Annual report

(A)

In general

The Comptroller General of the United States shall conduct an annual assessment to evaluate the overall performance of grants made under the program established pursuant to subsection (a). (B)

Dissemination

The Comptroller General shall submit a report containing the results of the evaluation conducted under subparagraph (A) to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives. (2)

Biannual report

Not later than 1 year after the date of the enactment of the American Infrastructure Investment Fund Act of 2011, and every 6 months thereafter, the Secretary of Transportation shall submit a report to the congressional committees set forth in paragraph (1)(B) that documents— (A)the number of applications received under this section; (B)the status of such applications; (C)the outcome of application evaluations; and (D)the status of grants awarded under the program established pursuant to subsection (a). (p)

Authorization of appropriations

There are authorized to be appropriated to the Secretary $600,000,000 for each of the fiscal years 2012 and 2013 to carry out this section.

. (b)

Conforming amendment

The table of contents for chapter 55 of title 49, United States Code, is amended by adding at the end the following: Subchapter iii. financial assistance 5581. National infrastructure investment grants .

4.

Multi-modal transportation funding

Section 133(b) of title 23, United States Code, is amended by adding at the end the following: (16)Passenger and freight transportation projects. (17)Port infrastructure projects. .