The Federal Transit Act, as Amended through August 10, 2005, and Related Laws (2007)

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5 PART I CHAPTER 53 OF TITLE 49,1 AS AMENDED THROUGH AUGUST 10, 2005 CONTENTS Section 5301. Policies, findings, and purposes......................................................................................................7 Section 5302. Definitions........................................................................................................................................8 Section 5303. Metropolitan transportation planning.........................................................................................12 Section 5304. Statewide transportation planning ..............................................................................................19 Section 5305. Planning programs. .......................................................................................................................22 Section 5306. Private enterprise participation in metropolitan planning and transportation improvement programs and relationship to other limitations ..........................................................................23 Section 5307. Urbanized area formula grants. ...................................................................................................24 Section 5308. Clean fuels formula grant program..............................................................................................29 Section 5309. Capital investment grants. ...........................................................................................................30 Section 5310. Formula grants for special needs of elderly individuals and individuals with disabilities.....................................................................................................................................................39 Section 5311. Formula grants for other than urbanized areas..........................................................................40 Section 5312. Research, development, demonstration, and deployment projects ............................................43 Section 5313. Transit cooperative research program.........................................................................................45 Section 5314. National research programs .........................................................................................................45 Section 5315. National transit institute..............................................................................................................47 Section 5316. Job access and reverse commute formula grants ........................................................................48 Section 5317. New freedom program...................................................................................................................50 Section 5318. Bus testing facility.........................................................................................................................51 Section 5319. Bicycle facilities .............................................................................................................................52 Section 5320. Alternative transportation in parks and public lands. ...............................................................52 Section 5321. Crime prevention and security .....................................................................................................55 Section 5322. Human resource programs ...........................................................................................................55 Section 5323. General provisions on assistance .................................................................................................56 Section 5324. Special provisions for capital projects..........................................................................................61 Section 5325. Contract requirements ..................................................................................................................62 [Section 5326. Special procurements.—repealed]...............................................................................................63 Section 5327. Project management oversight .....................................................................................................63 Section 5328. Project review ................................................................................................................................64 Section 5329. Investigations of safety hazards and security risks....................................................................66 Section 5330. State safety oversight....................................................................................................................67 Section 5331. Alcohol and controlled substances testing. ..................................................................................67 Section 5332. Nondiscrimination.........................................................................................................................69 Section 5333. Labor standards.............................................................................................................................70 Section 5334. Administrative provisions.............................................................................................................71 Section 5335. National transit database. ............................................................................................................74 Section 5336. Apportionment of appropriations for formula grants. ................................................................74 Section 5337. Apportionment based on fixed guideway factors.........................................................................78 Section 5338. Authorizations ...............................................................................................................................79 Section 5339. Alternatives analysis program .....................................................................................................83 Section 5340. Apportionments based on growing States and high density States formula factors................83 1 Pub. L. No. 103-272 revised, codified, and enacted without substantive change the federal transit legislation as chap. 53, subtit. III, tit. 49 of the United States Code. In many cases the verbiage of provisions in chapter 53 differs from that of the precodification version. Any footnoted amendments enacted before the enactment of 103-272 are to changes made to the precodification version, i.e., the Federal Transit Act, of the footnoted text. App. B provides a cross reference between the provisions of chapter 53 and those of the Federal Tran- sit Act.

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7 SECTION 5301.2 POLICIES, FINDINGS, AND PURPOSES.3 (a)4 DEVELOPMENT AND REVITALIZATION OF PUBLIC TRANSPORTATION SYSTEMS.—It is in the interest of the United States, including its economic interest, to foster the development and revitalization of public transporta- tion systems that— (1) maximize the safe, secure, and efficient mobil- ity of individuals; (2) minimize environmental impacts; and (3) minimize transportation-related fuel con- sumption and reliance on foreign oil. (b) GENERAL FINDINGS.—Congress finds that— (1) more than two-thirds5 of the population6 of the United States is located in rapidly expanding7 urbanized areas that generally cross the boundary lines of local jurisdictions and often extend into at least 2 States; (2) the welfare and vitality of urban areas, the satisfactory movement of people and goods within those areas, and the effectiveness of8 programs aided by the United States Government are jeop- 2 See also the statement of findings and purposes contained in § 1 of the Urban Mass Transportation Assistance Act of 1970 and § 2 of the National Mass Transportation Assistance Act of 1974 (See part II). 3 The language of Pub. L. No. 102-240 does not indicate con- gressional intent to create a private cause of action. Sierra Club v. Pena, 915 F. Supp. 1381 (N.D. Ohio 1996), aff’d sub. nom. Sierra Club v. Slater, 120 F.3d 623 (6th Cir. 1997). No private right of action was available under the Urban Mass Transportation Act of 1964 to cab company challenging man- ner in which public transit management contract was awarded. Razorback Cab of Ft. Smith, Inc. v. Flowers, 122 F.3d 657 (8th Cir. 1997). Although there is no private right of action under Pub. L. No. 102-240, plaintiffs still have a right of review under the Administrative Procedures Act. Township of Belleville v. Federal Transit Admin., 30 F. Supp. 2d 782 (D.N.J. 1998). 4 Sec. 3003(a) of Pub. L. No. 109-59 amended this subsection generally. Before amendment, the subsection read: DEVELOPMENT OF TRANSPORTATION SYSTEMS. —It is in the in- terest of the United States to encourage and promote the devel- opment of transportation systems that embrace various modes of transportation and efficiently maximize mobility of individu- als and goods in and through urbanized areas and minimize transportation-related fuel consumption and air pollution. 5 Sec. 3003(b)(1) of Pub. L. No. 109-59 struck “70 percent” and inserted “two-thirds”; struck “urban” and inserted “urban- ized”. 6 Pub. L. No. 103-272 deleted “the predominant part” from this paragraph, originally § 2(a)(1). 7 Pub. L. No. 103-272 deleted “metropolitan and other” from this paragraph, originally § 2(a)(1). 8 Prior to Pub. L. No. 103-272, the balance of this paragraph read: “housing, urban renewal, highway, and other federally aided programs are being jeopardized by the deterioration or inadequate provision of urban transportation facilities and services, the intensification of traffic congestion, and the lack of coordinated transportation and other development planning on a comprehensive and continuing basis”. ardized by deteriorating or inadequate urban transportation service and facilities, the intensifi- cation of traffic congestion, and the lack of coordi- nated, comprehensive, and continuing development planning; (3) transportation is the lifeblood of an urbanized society, and the health and welfare of an urbanized society depend on providing efficient, economical, and convenient transportation in and between ur- ban areas; (4)9 for many years the public transportation in- dustry capably and profitably satisfied the trans- portation needs of the urban areas of the United States but in the early 1970's continuing even minimal public transportation service in urban ar- eas was threatened because maintaining that transportation service was financially burdensome; (5) ending that transportation, or the continued increase in its cost to the user, is undesirable and may affect seriously and adversely the welfare of a substantial number of lower income individuals; (6) some urban areas were developing prelimi- nary plans for, or carrying out, projects in the early 1970's to revitalize their public transportation op- erations; (7) significant public transportation improve- ments are necessary to achieve national goals for improved air quality, energy conservation, interna- tional competitiveness, and mobility for elderly in- dividuals, individuals with disabilities, and eco- nomically disadvantaged individuals in urban and rural areas of the United States;10 (8) financial assistance by the Government to de- velop efficient and coordinated public transporta- tion systems is essential to solve the urban trans- portation problems referred to in clause (2) of this subsection; and (9) immediate substantial assistance by the Gov- ernment is needed to enable public transportation systems to continue providing vital transportation service. (c) RAPID URBANIZATION AND CONTINUING POPULATION DISPERSAL.—Rapid urbanization and continuing disper- sal of the population and activities in urban areas have made the ability of all citizens to move quickly and at a reasonable cost an urgent problem of the Government. (d) ELDERLY INDIVIDUALS AND INDIVIDUALS WITH DISABILITIES.11—It is the policy of the Government that elderly individuals and individuals with disabilities have the same right as other individuals to use public 9 Pub. L. No. 103-272 substituted “the early 1970's” for “re- cent years” and “minimal mass transportation service” for “this essential public service”. 10 Sec. 3005(a) of Pub. L. No. 102-240 added this paragraph, originally § 2(a)(4). 11 Sec. 3021(1) of Pub. L. No. 102-240 replaced “elderly and handicapped persons” with “elderly persons and persons with disabilities” throughout § 16 of the Federal Transit Act. See app. B for cross-references.

8 transportation service and facilities.12 Special efforts shall be made in planning and designing public trans- portation service and facilities to ensure that public transportation can be used by elderly individuals and individuals with disabilities.13 All programs of the Gov- ernment assisting public transportation shall carry out this policy. (e) PRESERVING THE ENVIRONMENT.14—It is the policy of the Government that special effort shall be made to preserve the natural beauty of the countryside, public park and recreation lands, wildlife and waterfowl ref- uges, and important historical and cultural assets when planning, designing, and carrying out a15 public trans- portation capital project with assistance from the Gov- ernment.16 (f) GENERAL PURPOSES.—The purposes of this chapter are— (1) to assist in developing improved public17 transportation equipment, facilities, techniques, and methods with the cooperation of both public transportation companies and private companies engaged in public transportation; (2) to encourage the planning and establishment of areawide public18 transportation systems needed 12 Provisions of federal transit legislation governing right of access of disabled individuals do not mandate mainstreaming for disabled in public transportation. Americans Disabled for Accessible Pub. Transp. (ADAPT) v. Skinner, 881 F.2d 1184 (3d Cir. 1989). Settlement agreement between transit agency and disabled individuals established contractual obligation rather than nonbinding statement of policy, where following settlement agreement transit agency created separate para- transit system and established guidelines for personnel in deal- ing with disabled individuals, as required by settlement. Rod- riguez v. VIA Metro. Transit System, 802 F.2d 126 (5th Cir. 1986). 13 Individuals with disabilities met requirements of stand- ing. However, approval of a grant under the “special efforts” standard to purchase 185 buses, only 10 of which were accessi- ble to individuals with mobility disabilities, was not arbitrary or capricious. Baker v. Bell, 630 F.2d 1046 (5th Cir. 1980). 14 Additional statutory requirements with regard to the en- vironment are contained in the National Environmental Policy Act of 1969 and § 4(f) of the Department of Transportation Act. One court has held that environmental requirements of the Federal Transit Act do not apply to demonstration projects undertaken by the Secretary directly or by contract. Township of Ridley v. Blanchette, 421 F. Supp. 435 (E.D. Pa. 1976). 15 Sec. 3003(c)(1) of Pub. L. No. 109-59 struck “an urban” and inserted “a”. 16 Sec. 3003(c)(2) of Pub. L. No. 109-59 struck “under sec- tions 5309 and 5310 of this title”. 17 Sec. 3003(d)(1) of Pub. L. No. 109-59 struck “mass” and inserted “public”; struck “public and private mass transporta- tion companies” and inserted “both public transportation com- panies and private companies engaged in public transporta- tion”. 18 Sec. 3003(d)(2) of Pub. L. No. 109-59 struck “urban mass” and inserted “public”; struck “public and private mass trans- portation companies” and inserted “both public transportation for economical and desirable urban development with the cooperation of both public transportation companies and private companies engaged in public transportation; 19 (3) 20 to assist States and local governments and their authorities in financing areawide public21 transportation systems that are to be operated by public or private mass transportation companies as decided by local needs; (4)22 to provide financial assistance to State and local governments and their authorities to help carry out national goals related to mobility for eld- erly individuals, individuals with disabilities, and economically disadvantaged individuals; and (5) to establish a partnership that allows a com- munity, with financial assistance from the Gov- ernment, to satisfy its public23 transportation requirements. SECTION 5302.24 DEFINITIONS. (a) IN GENERAL.— Except as otherwise specifically provided, in this chapter,25 the following definitions apply: (1) CAPITAL PROJECT.—The term “capital project” means a project for— companies and private companies engaged in public transpor- tation”. 19 One court has held that this provision “does not purport to confer on local residents private rights [of action] in the devel- opment of mass transit systems.” Rapid Transit Advocates v. Southern Cal. Rapid Transit District, 752 F.2d 373, 377 (9th Cir. 1985). 20 “The UMT Act does not create a private right of action and none can be implied.” City of Evanston v. Regional Transp. Auth., 825 F.2d 1121 (7th Cir. 1987), cert. denied, 484 U.S. 1005 (1988); A.B.C. Bus Lines v. Urban Mass Transp. Admin., 831 F.2d 360 (1st Cir. 1987). See also Rapid Transit Advocates v. Southern Cal. Rapid Transit District, 752 F.2d 373, 377 (9th Cir. 1985); Associated Business of Franklin v. Warren County Board, 522 F. Supp. 1015, 1018–20 (S.D. Ohio 1981); Dopico v. Goldschmidt, 518 F. Supp. 1161, 1172–73 (S.D.N.Y. 1981), aff'd in part, rev'd in part, 687 F.2d 644 (2d Cir. 1982). 21 Sec. 3003(d)(2) of Pub. L. No. 109-59 struck “urban mass” and inserted “public”; struck “public and private mass trans- portation companies” and inserted “public transportation com- panies or private companies engaged in public transportation”. 22 Sec. 3005(b) of Pub. L. No. 102-240 added this paragraph, originally § 2(b)(4). 23 Sec. 3003(d)(2) of Pub. L. No. 109-59 struck “urban mass” and inserted “public”. 24 Pub. L. No. 103-272 codified § 12(c) and a portion of § 12(h) of the Federal Transit Act to constitute this section, omit- ting certain text as surplus and substituting various terms for clarity. Sec. 3303(a) of Pub. L. No. 105-178, as renumbered by Pub. L. No. 105-206, § 9009(a)(1), generally revised § 5302, revising and restating existing definitions and adding new paragraphs defining additional terms. 25 Sec. 3004(a) of Pub. L. No. 109-59 struck “In this chapter” and inserted “Except as otherwise specifically provided, in this chapter”.

9 (A) acquiring, constructing, supervising, or inspecting equipment or a facility for use in public transportation, expenses incidental to the acquisition or construction (including de- signing, engineering, location surveying, map- ping, and acquiring rights-of-way), payments for the capital portions of rail trackage rights agreements,26 transit-related intelligent trans- portation systems, relocation assistance, ac- quiring replacement housing sites, and acquir- ing, constructing, relocating, and rehabilitating replacement housing; (B) rehabilitating a bus;27 (C) remanufacturing a bus;28 (D) overhauling rail rolling stock; (E) preventive maintenance; (F) leasing29 equipment or a facility for use in public transportation, subject to regulations that the Secretary30 prescribes limiting the leasing arrangements to those that are more cost-effective than purchase or construction; (G) a public transportation improvement that enhances economic development or incor- porates private investment, including commer- cial and residential development, pedestrian and bicycle access to a public transportation fa- cility, construction, renovation, and improve- ment of intercity bus and intercity rail stations 26 Sec. 335A of Pub. L. No. 103-331, as amended by sec. 6(c) of Pub. L. No. 104-287, amended this subparagraph by insert- ing “payments for…rights agreements”. 27 Sec. 333(a)(1) of Pub. L. No. 104–50, as amended by sec. 3(a)(1) of Pub. L. No. 105-102, amended this subparagraph by striking “that extends the economic life of the bus for at least 5 years” after “bus”. Sec. 309(a) of Pub. L. No. 97-424 added the precodification version of this language. 28 Sec. 333(a)(2) of Pub. L. No. 104–50, as amended by sec. 3(a)(2) of Pub. L. No. 105-102, amended this subparagraph by striking “that extends the economic life of the bus for at least 8 years” after “bus”. Sec. 309(a) of Pub. L. No. 97-424 added the precodification version of this language. 29 Local transit authority did not violate Federal Transit Act and implementing regulations by leasing federally-funded property to third-party investors at site of transit station to produce income stream, as property continued to be used for its originally authorized transit purpose. Woodham v. Federal Transit Admin., 125 F. Supp. 2d 1106 (N.D. Ga. 2000). 30 As originally enacted, the Act vested urban mass trans- portation functions in the Administrator of the Housing and Home Finance Agency. The Department of Housing and Urban Development Act (Pub. L. No. 89-174) transferred those func- tions to the Secretary of Housing and Urban Development. By sec. 20 of Pub. L. No. 90-19, the Act was amended to read “Sec- retary of Housing and Urban Development.” Reorganization Plan No. 2 of 1968 (see app. A), transferred most urban mass transportation functions to the Secretary of Transportation. Unless otherwise indicated, all references to the Secretary mean the Secretary of Transportation. and terminals,31 and the renovation and im- provement of historic transportation facilities, because the improvement enhances the effec- tiveness of a public transportation project and is related physically or functionally to that public transportation project, or establishes new or enhanced coordination between public transportation and other transportation, and provides a fair share of revenue for public transportation that will be used for public transportation— (i) including property acquisition, demo- lition of existing structures, site prepara- tion, utilities, building foundations, walk- ways, open space, safety and security equipment and facilities (including light- ing, surveillance and related intelligent transportation system applications), facili- ties that incorporate community services such as daycare or32 health care, and a capital project for, and improving, equip- ment or a facility for an intermodal trans- fer facility or transportation mall, except that a person making an agreement to oc- cupy space in a facility under this sub- paragraph shall pay a reasonable share of the costs of the facility through rental payments and other means; and (ii) excluding construction of a commer- cial revenue-producing facility (other than an intercity bus station or terminal)33 or a part of a public facility not related to pub- lic transportation;34 (H) the introduction of new technology, through innovative and improved products, into public transportation;35 (I) the provision of nonfixed route paratran- sit transportation services in accordance with section 223 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12143), but only for grant recipients that are in compliance with 31 Sec. 3004(b)(1) of Pub. L. No. 109-59 inserted “construc- tion, renovation, and improvement of intercity bus and inter- city rail stations and terminals,”. 32 Sec. 3003(b) of Pub. L. No. 105-178, as added by sec. 9009(a)(2) of Pub. L. No. 105-206, substituted “daycare or” for “daycare and”. 33 Sec. 3004(b)(2) of Pub. L. No. 109-59 inserted “(other than an intercity bus station or terminal)”. 34 This provision does not create a private right of action, nor did it prohibit use of federal funds for construction of strengthened foundation for transportation hub and commer- cial development on property in town since this type of joint enterprise was specifically authorized by statute. Town of Se- caucus v. United States Dep’t of Transp., 889 F. Supp. 779 (D.N.J. 1995), aff’d, 79 F.3d 1139 (3d Cir. 1996). 35 Sec. 3004(b)(3), (4), and (5) of Pub. L. No. 109-59 made formatting changes to subparas. (H) and (I) and inserted sub- paras. (J)–(L). The alignment of subpara. (K), incorrect in the public law, has been corrected here.

10 applicable requirements of that Act, including both fixed route and demand responsive ser- vice, and only for amounts not to exceed 10 percent of such recipient's annual formula ap- portionment under sections 5307 and 5311; or (J) crime prevention and security— (i) including— (I) projects to refine and develop se- curity and emergency response plans; (II) projects aimed at detecting chemical and biological agents in pub- lic transportation; (III) the conduct of emergency re- sponse drills with public transporta- tion agencies and local first response agencies; and (IV) security training for public transportation employees; but (ii) excluding all expenses related to op- erations, other than such expenses in- curred in conducting activities described in clauses (i)(III) and (i)(IV); (K) establishing a debt service reserve, made up of deposits with a bondholder’s trustee, to ensure the timely payment of principal and in- terest on bonds issued by a grant recipient to finance an eligible project under this chapter; or (L) mobility management— (i) consisting of short-range planning and management activities and projects for improving coordination among public transportation and other transportation service providers carried out by a recipient or subrecipient through an agreement en- tered into with a person, including a gov- ernmental entity, under this chapter (other than section 5309); but (ii) excluding operating public transpor- tation services. (2) CHIEF EXECUTIVE OFFICER OF A STATE.—The term “chief executive officer of a State” includes the designee of the chief executive officer. (3) EMERGENCY REGULATION.—The term “emergency regulation” means a regulation— (A) that is effective temporarily before the expiration of the otherwise specified periods of time for public notice and comment under sec- tion 5334(b); and (B) prescribed by the Secretary as the result of a finding that a delay in the effective date of the regulation— (i) would injure seriously an important public interest; (ii) would frustrate substantially legisla- tive policy and intent; or (iii) would damage seriously a person or class without serving an important public interest. (4) FIXED GUIDEWAY.—The term “fixed guideway” means a public transportation facility— (A) using and occupying a separate right-of- way or rail36 for the exclusive use of public transportation and other high occupancy vehi- cles; or (B)37 using a fixed catenary system and a right-of-way usable by other forms of transpor- tation. (5) INDIVIDUAL WITH A DISABILITY.38—The term “individual with a disability” means an individual who, because of illness, injury, age, congenital mal- function, or other incapacity or temporary or per- manent disability (including an individual who is a wheelchair user or has semiambulatory capability), cannot use effectively, without special facilities, planning, or design, public transportation service or a public transportation facility. (6) LOCAL GOVERNMENTAL AUTHORITY39.—The term “local governmental authority” includes— (A) a political subdivision of a State; (B) an authority of at least 1 State or politi- cal subdivision of a State; (C) an Indian tribe; and (D) a public corporation, board, or commis- sion established under the laws of a State. (7)40 MASS TRANSPORTATION.— The term “mass transportation” means public transportation. 36 Sec. 309(b) of Pub. L. No. 97-424 inserted “or rails” to the precodification version of this subparagraph. See 96 Stat. 2151, Jan. 6, 1983. 37 Sec. 309(b) of Pub. L. No. 97-424 inserted the precodifica- tion version of this subparagraph. 38 Sec. 3004(c) of Pub. L. No. 109-59 struck “HANDICAPPED INDIVIDUAL” here and “handicapped individual” in the text of the paragraph and inserted “INDIVIDUAL WITH A DISABILITY” and “individual with a disability”. The definition of “handi- capped person” was originally contained in § 16(b) of the Fed- eral Transit Act. Subsec. 311(b) of Pub. L. No. 95-599 deleted that subsection. The definition was then contained in § 12(c)(4). 39 Pub. L. No. 103-272 substituted “local governmental au- thority” for “local public body” throughout chap. 53. 40 Sec. 3004(d) of Pub. L. No. 109-59 amended this para- graph generally. Before amendment, the paragraph read: “Mass transportation—The term ‘mass transportation’ means transportation by a conveyance that provides regular and con- tinuing general or special transportation to the public, but does not include school bus, charter, or sightseeing transportation”. Sec. 702 of Pub. L. No. 90-448 inserted the terms “special ser- vice” and “on a regular and continuing basis” in the precodifi- cation version of that paragraph. Equipment purchased under the Act as it read prior to August 13, 1973, must be needed for the provision of urban mass transportation service, but such equipment may also be used in incidental charter service that does not interfere with its regularly scheduled service to the public. Opinion of the Comptroller General of the United States, B-16024, Dec. 7, 1966. But see also the provisions of §§ 5323(d) and (f).

11 (8) NET PROJECT COST.—The term “net project cost” means the part of a project that reasonably cannot be financed from revenues. (9) NEW BUS MODEL.—The term “new bus model” means a bus model (including a model using alter- native fuel)— (A) that has not been used in public trans- portation in the United States before the date of production of the model; or (B) used in public transportation in the United States, but being produced with a major change in configuration or components. (10)41 PUBLIC TRANSPORTATION.— The term “pub- lic transportation” means transportation by a con- veyance that provides regular and continuing gen- eral or special transportation to the public, but does not include schoolbus, charter, or intercity bus transportation or intercity passenger rail transpor- tation provided by the entity described in chapter 243 (or a successor to such entity). (11) REGULATION.—The term “regulation” means any part of a statement of general or particular ap- plicability of the Secretary designed to carry out, interpret, or prescribe law or policy in carrying out this chapter. (12) SECRETARY.—The term “Secretary” means the Secretary of Transportation.42 (13) STATE.—The term “State” means a State of the United States, the District of Columbia, Puerto Rico, the Northern Mariana Islands, Guam, Ameri- can Samoa, and the Virgin Islands. (14) TRANSIT.—The term “transit” means public transportation.43 (15) TRANSIT ENHANCEMENT.—The term “transit enhancement” means, with respect to any project or an area to be served by a project, projects that are designed to enhance public transportation service or use and that are physically or functionally re- lated to transit facilities. Eligible projects are— (A) historic preservation, rehabilitation, and operation of historic public transportation buildings, structures, and facilities (including historic bus and railroad facilities); (B) bus shelters; (C) landscaping and other scenic beautifica- tion, including tables, benches, trash recepta- cles, and street lights; (D) public art; (E) pedestrian access and walkways; (F) bicycle access, including bicycle storage facilities and installing equipment for trans- 41 Sec. 3004(e) of Pub. L. No. 109-59 amended this para- graph generally. Before amendment, the paragraph read: “PUBLIC TRANSPORTATION—The term ‘public transportation’ means mass transportation.” 42 See supra note 30. 43 Sec. 3016 of Pub. L. No. 102-240 added “transit” to the definition of “mass transportation”. porting bicycles on public transportation vehi- cles; (G) transit connections to parks within the recipient's transit service area; (H) signage; and (I) enhanced access for persons with disabili- ties to public transportation. (16) URBAN AREA.—The term “urban area” means an area that includes a municipality or other built- up place that the Secretary, after considering local patterns and trends of urban growth, decides is ap- propriate for a local public transportation system to serve individuals in the locality. (17)44 URBANIZED AREA.— The term “urbanized area” means an area encompassing a population of not less than 50,000 people that has been defined and designated in the most recent decennial census as an “urbanized area” by the Secretary of Com- merce. (b) AUTHORITY TO MODIFY “INDIVIDUAL WITH A DISABILITY”.45—The Secretary may by regulation modify the definition of the term “handicapped individual” in subsection (a)(5) as it applies to section 5307(d)(1)(D). 44 Sec. 3004(f) of Pub. L. No. 109-59 amended this paragraph generally. Before amendment, the paragraph read: (17) Urbanized area.—The term “urbanized area” means an area— (A) encompassing at least an urbanized area within a State that the Secretary of Commerce designates; and (B) designated as an urbanized area within boundaries fixed by State and local officials and approved by the Secretary. (See U.S.C., 2000 ed.) 45 Sec. 3004(g) of Pub. L. No. 109-59 struck “HANDICAPPED INDIVIDUAL” here and “handicapped individual” in the body of the subsection and inserted “INDIVIDUAL WITH A DISABILITY” and “individual with a disability”.

12 SECTION 5303.46 METROPOLITAN TRANSPORTATION PLANNING.47 48 (a) POLICY.—It is in the national interest to— (1) encourage and promote the safe and efficient management, operation, and development of sur- face transportation systems that will serve the mo- bility needs of people and freight and foster eco- nomic growth and development within and between States and urbanized areas, while minimizing transportation-related fuel consumption and air pollution through metropolitan and statewide transportation planning processes identified in this chapter; and (2) encourage the continued improvement and evolution of the metropolitan and statewide trans- portation planning processes by metropolitan plan- ning organizations, State departments of transpor- tation, and public transit operators as guided by the planning factors identified in subsection (h) and section 5304(d). (b) DEFINITIONS.—In this section and section 5304, the following definitions apply: (1) METROPOLITAN PLANNING AREA.—The term “metropolitan planning area” means the geographic area determined by agreement between the metro- politan planning organization for the area and the Governor under subsection (e). (2) METROPOLITAN PLANNING ORGANIZATION.—The term “metropolitan planning organization’ means the policy board of an organization created as a re- sult of the designation process in subsection (d). (3) NONMETROPOLITAN AREA.—The term “non- metropolitan area” means a geographic area out- side a designated metropolitan planning area. 46 Sec. 3005(a) of Pub. L. No. 109-59 amended this section generally. See app. D for section before amendment and legis- lative history. 47 Federal statutes relating to transportation planning in urban areas did not create implied private right of action against city transportation study policy advisory committee for its activity in developing and endorsing local transportation plan. Allandale Neighborhood Ass’n v. Austin Transp. Study Policy Advisory Comm., 840 F.2d 258 (5th Cir. 1988). The regulations implementing the transportation planning process, published at 23 C.F.R. pt. 450 and 49 C.F.R. pt. 613, have been upheld as a lawful exercise of the Secretary's au- thority. County of L.A., Cal. v. Coleman, 423 F. Supp. 496 (D.D.C. 1976) aff'd 574 F.2d 607 (D.C. Cir. 1978). An urbanized area may receive planning certification if it substantially meets the regulatory requirements; the area need not have complied with every requirement of the regulations in order to gain cer- tification and a certification does not expire until a negative certification decision is made. Parker v. Adams, Civil No. 76- 692 (W.D.N.Y., memorandum opinion filed Nov. 13, 1978). 48 In Atlanta Comm’n on the Transp. Crisis v. Atlanta Re- gional Comm’n, 599 F.2d 1333 (5th Cir. 1979), the Court of Appeals held that the federal transit agency's commitment to fund the planning portion of a proposed project in no way commits the agency to fund the project itself or its construc- tion. (4) NONMETROPOLITAN LOCAL OFFICIAL.—The term “nonmetropolitan local official” means elected and appointed officials of general purpose local govern- ment in a nonmetropolitan area with responsibility for transportation. (5) TIP.—The term “TIP” means a transportation improvement program developed by a metropolitan planning organization under subsection (j). (6) URBANIZED AREA.—The term “urbanized area” means a geographic area with a population of 50,000 or more, as designated by the Bureau of the Census. (c) GENERAL REQUIREMENTS.— (1) DEVELOPMENT OF LONG-RANGE PLANS AND TIPS.—To accomplish the objectives in subsection (a), metropolitan planning organizations desig- nated under subsection (d), in cooperation with the State and public transportation operators, shall de- velop long-range transportation plans and trans- portation improvement programs for metropolitan planning areas of the State. (2) CONTENTS.—The plans and TIPs for each met- ropolitan area shall provide for the development and integrated management and operation of transportation systems and facilities (including ac- cessible pedestrian walkways and bicycle transpor- tation facilities) that will function as an intermodal transportation system for the metropolitan plan- ning area and as an integral part of an intermodal transportation system for the State and the United States. (3) PROCESS OF DEVELOPMENT.—The process for developing the plans and TIPs shall provide for consideration of all modes of transportation and shall be continuing, cooperative, and comprehen- sive to the degree appropriate, based on the com- plexity of the transportation problems to be ad- dressed. (d) DESIGNATION OF METROPOLITAN PLANNING ORGANIZATIONS.— (1) IN GENERAL.—To carry out the transportation planning process required by this section, a metro- politan planning organization shall be designated for each urbanized area with a population of more than 50,000 individuals— (A) by agreement between the Governor and units of general purpose local government that together represent at least 75 percent of the af- fected population (including the largest incor- porated city (based on population) as named by the Bureau of the Census); or (B) in accordance with procedures estab- lished by applicable State or local law. (2) STRUCTURE.—Each metropolitan planning or- ganization that serves an area designated as a transportation management area, when designated or redesignated under this subsection, shall consist of— (A) local elected officials;

13 (B) officials of public agencies that adminis- ter or operate major modes of transportation in the metropolitan area; and (C) appropriate State officials. (3) LIMITATION ON STATUTORY CONSTRUCTION.— Nothing in this subsection shall be construed to in- terfere with the authority, under any State law in effect on December 18, 1991, of a public agency with multimodal transportation responsibilities to— (A) develop the plans and TIPs for adoption by a metropolitan planning organization; and (B) develop long-range capital plans, coordi- nate transit services and projects, and carry out other activities pursuant to State law. (4) CONTINUING DESIGNATION.—A designation of a metropolitan planning organization under this sub- section or any other provision of law shall remain in effect until the metropolitan planning organiza- tion is redesignated under paragraph (5). (5) REDESIGNATION PROCEDURES.—A metropolitan planning organization may be redesignated by agreement between the Governor and units of gen- eral purpose local government that together repre- sent at least 75 percent of the existing planning area population (including the largest incorporated city (based on population) as named by the Bureau of the Census) as appropriate to carry out this sec- tion. (6) DESIGNATION OF MORE THAN ONE METROPOLITAN PLANNING ORGANIZATION.—More than one metropolitan planning organization may be designated within an existing metropolitan planning area only if the Governor and the existing metropolitan planning organization determine that the size and complexity of the existing metropolitan planning area make designation of more than one metropolitan planning organization for the area appropriate. (e) METROPOLITAN PLANNING AREA BOUNDARIES.— (1) IN GENERAL.—For the purposes of this section, the boundaries of a metropolitan planning area shall be determined by agreement between the metropolitan planning organization and the Gover- nor. (2) INCLUDED AREA.—Each metropolitan planning area— (A) shall encompass at least the existing ur- banized area and the contiguous area expected to become urbanized within a 20-year forecast period for the transportation plan; and (B) may encompass the entire metropolitan statistical area or consolidated metropolitan statistical area, as defined by the Bureau of the Census. (3) IDENTIFICATION OF NEW URBANIZED AREAS WITHIN EXISTING PLANNING AREA BOUNDARIES.—The designation by the Bureau of the Census of new ur- banized areas within an existing metropolitan planning area shall not require the redesignation of the existing metropolitan planning organization. (4) EXISTING METROPOLITAN PLANNING AREAS IN NONATTAINMENT.—Notwithstanding paragraph (2), in the case of an urbanized area designated as a nonattainment area for ozone or carbon monoxide under the Clean Air Act (42 U.S.C. 7401 et seq.) as of the date of enactment of the Federal Public Transportation Act of 2005, the boundaries of the metropolitan planning area in existence as of such date of enactment shall be retained; except that the boundaries may be adjusted by agreement of the Governor and affected metropolitan planning or- ganizations in the manner described in subsection (d)(5). (5) NEW METROPOLITAN PLANNING AREAS IN NONATTAINMENT.—In the case of an urbanized area designated after the date of enactment of the Fed- eral Public Transportation Act of 2005 as a nonat- tainment area for ozone or carbon monoxide, the boundaries of the metropolitan planning area— (A) shall be established in the manner de- scribed in subsection (d)(1); (B) shall encompass the areas described in paragraph (2)(A); (C) may encompass the areas described in paragraph (2)(B); and (D) may address any nonattainment area identified under the Clean Air Act for ozone or carbon monoxide. (f) COORDINATION IN MULTISTATE AREAS.— (1) IN GENERAL.—The Secretary shall encourage each Governor with responsibility for a portion of a multistate metropolitan area and the appropriate metropolitan planning organizations to provide co- ordinated transportation planning for the entire metropolitan area. (2) INTERSTATE COMPACTS.—The consent of Con- gress is granted to any two or more States— (A) to enter into agreements or compacts, not in conflict with any law of the United States, for cooperative efforts and mutual assistance in support of activities authorized under this sec- tion as the activities pertain to interstate areas and localities within the States; and (B) to establish such agencies, joint or oth- erwise, as the States may determine desirable for making the agreements and compacts effec- tive. (3) LAKE TAHOE REGION.— (A) DEFINITION.—In this paragraph, the term “Lake Tahoe region” has the meaning given the term “region” in subdivision (a) of article II of the Tahoe Regional Planning Compact, as set forth in the first section of Public Law 96–551 (94 Stat. 3234). (B) TRANSPORTATION PLANNING PROCESS.— The Secretary shall— (i) establish with the Federal land man- agement agencies that have jurisdiction

14 over land in the Lake Tahoe region a transportation planning process for the re- gion; and (ii) coordinate the transportation plan- ning process with the planning process re- quired of State and local governments un- der this section and section 5304. (C) INTERSTATE COMPACT.— (i) IN GENERAL.—Subject to clause (ii), and notwithstanding subsection (b), to carry out the transportation planning process required by this section, the con- sent of Congress is granted to the States of California and Nevada to designate a metropolitan planning organization for the Lake Tahoe region, by agreement between the Governors of the States of California and Nevada and units of general purpose local government that together represent at least 75 percent of the affected popula- tion (including the central city or cities (as defined by the Bureau of the Census)), or in accordance with procedures established by applicable State or local law. (ii) INVOLVEMENT OF FEDERAL LAND MANAGEMENT AGENCIES.— (I) REPRESENTATION.—The policy board of a metropolitan planning or- ganization designated under clause (i) shall include a representative of each Federal land management agency that has jurisdiction over land in the Lake Tahoe region. (II) FUNDING.—In addition to funds made available to the metropolitan planning organization for the Lake Tahoe region under other provisions of this chapter and title 23, 1 percent of the funds allocated under section 202 of title 23 shall be used to carry out the transportation planning process for the Lake Tahoe region under this subparagraph. (D) ACTIVITIES.—Highway projects included in transportation plans developed under this paragraph— (i) shall be selected for funding in a manner that facilitates the participation of the Federal land management agencies that have jurisdiction over land in the Lake Tahoe region; and (ii) may, in accordance with chapter 2 of title 23, be funded using funds allocated under section 202 of such title. (4) RESERVATION OF RIGHTS.—The right to alter, amend, or repeal interstate compacts entered into under this subsection is expressly reserved. (g) MPO CONSULTATION IN PLAN AND TIP COORDINATION.— (1) NONATTAINMENT AREAS.—If more than one metropolitan planning organization has authority within a metropolitan area or an area which is des- ignated as a nonattainment area for ozone or car- bon monoxide under the Clean Air Act, each metro- politan planning organization shall consult with the other metropolitan planning organizations des- ignated for such area and the State in the coordina- tion of plans and TIPs required by this section. (2) TRANSPORTATION IMPROVEMENTS LOCATED IN MULTIPLE MPOS.—If a transportation improvement, funded from the Highway Trust Fund or authorized under this chapter, is located within the boundaries of more than one metropolitan planning area, the metropolitan planning organizations shall coordi- nate plans and TIPs regarding the transportation improvement. (3) RELATIONSHIP WITH OTHER PLANNING OFFICIALS.—The Secretary shall encourage each metropolitan planning organization to consult with officials responsible for other types of planning ac- tivities that are affected by transportation in the area (including State and local planned growth, economic development, environmental protection, airport operations, and freight movements) or to coordinate its planning process, to the maximum extent practicable, with such planning activities. Under the metropolitan planning process, transpor- tation plans and TIPs shall be developed with due consideration of other related planning activities within the metropolitan area, and the process shall provide for the design and delivery of transporta- tion services within the metropolitan area that are provided by— (A) recipients of assistance under this chap- ter; (B) governmental agencies and nonprofit or- ganizations (including representatives of the agencies and organizations) that receive Fed- eral assistance from a source other than the Department of Transportation to provide nonemergency transportation services; and (C) recipients of assistance under section 204 of title 23. (h) SCOPE OF PLANNING PROCESS.— (1) IN GENERAL.—The metropolitan planning pro- cess for a metropolitan planning area under this section shall provide for consideration of projects and strategies that will— (A) support the economic vitality of the met- ropolitan area, especially by enabling global competitiveness, productivity, and efficiency; (B) increase the safety of the transportation system for motorized and nonmotorized users; (C) increase the security of the transporta- tion system for motorized and nonmotorized users; (D) increase the accessibility and mobility of people and for freight;

15 (E) protect and enhance the environment, promote energy conservation, improve the quality of life, and promote consistency be- tween transportation improvements and State and local planned growth and economic devel- opment patterns; (F) enhance the integration and connectivity of the transportation system, across and be- tween modes, for people and freight; (G) promote efficient system management and operation; and (H) emphasize the preservation of the exist- ing transportation system. (2) FAILURE TO CONSIDER FACTORS.—The failure to consider any factor specified in paragraph (1) shall not be reviewable by any court under this chapter, title 23, subchapter II of chapter 5 of title 5, or chapter 7 of title 5 in any matter affecting a trans- portation plan, a TIP, a project or strategy, or the certification of a planning process. (i) DEVELOPMENT OF TRANSPORTATION PLAN.— (1) IN GENERAL.—Each metropolitan planning or- ganization shall prepare a transportation plan for its metropolitan planning area in accordance with the requirements of this subsection. The metropoli- tan planning organization shall prepare and update such plan every 4 years (or more frequently, if the metropolitan planning organization elects to up- date more frequently) in the case of each of the fol- lowing: (A) Any area designated as nonattainment, as defined in section 107(d) of the Clean Air Act (42 U.S.C. 7407(d)). (B) Any area that was nonattainment and subsequently designated to attainment in ac- cordance with section 107(d)(3) of that Act (42 U.S.C. 7407(d)(3)) and that is subject to a maintenance plan under section 175A of that Act (42 U.S.C. 7505a). In the case of any other area required to have a transportation plan in accordance with the re- quirements of this subsection, the metropolitan planning organization shall prepare and update such plan every 5 years unless the metropolitan planning organization elects to update more fre- quently. (2) TRANSPORTATION PLAN.—A transportation plan under this section shall be in a form that the Secretary determines to be appropriate and shall contain, at a minimum, the following: (A) IDENTIFICATION OF TRANSPORTATION FACILITIES.—An identification of transportation facilities (including major roadways, transit, multimodal and intermodal facilities, and in- termodal connectors) that should function as an integrated metropolitan transportation sys- tem, giving emphasis to those facilities that serve important national and regional trans- portation functions. In formulating the trans- portation plan, the metropolitan planning or- ganization shall consider factors described in subsection (h) as such factors relate to a 20- year forecast period. (B) MITIGATION ACTIVITIES.— (i) IN GENERAL.—A long-range transpor- tation plan shall include a discussion of types of potential environmental mitiga- tion activities and potential areas to carry out these activities, including activities that may have the greatest potential to re- store and maintain the environmental functions affected by the plan. (ii) CONSULTATION.—The discussion shall be developed in consultation with Federal, State, and tribal wildlife, land manage- ment, and regulatory agencies. (C) FINANCIAL PLAN.—A financial plan that demonstrates how the adopted transportation plan can be implemented, indicates resources from public and private sources that are rea- sonably expected to be made available to carry out the plan, and recommends any additional financing strategies for needed projects and programs. The financial plan may include, for illustrative purposes, additional projects that would be included in the adopted transporta- tion plan if reasonable additional resources be- yond those identified in the financial plan were available. For the purpose of developing the transportation plan, the metropolitan planning organization, transit operator, and State shall cooperatively develop estimates of funds that will be available to support plan implementa- tion. (D) OPERATIONAL AND MANAGEMENT STRATEGIES.—Operational and management strategies to improve the performance of exist- ing transportation facilities to relieve vehicular congestion and maximize the safety and mobil- ity of people and goods. (E) CAPITAL INVESTMENT AND OTHER STRATEGIES.—Capital investment and other strategies to preserve the existing and pro- jected future metropolitan transportation in- frastructure and provide for multimodal capac- ity increases based on regional priorities and needs. (F) TRANSPORTATION AND TRANSIT ENHANCEMENT ACTIVITIES.—Proposed transpor- tation and transit enhancement activities. (3) COORDINATION WITH CLEAN AIR ACT AGENCIES.—In metropolitan areas which are in nonattainment for ozone or carbon monoxide under the Clean Air Act, the metropolitan planning or- ganization shall coordinate the development of a transportation plan with the process for develop- ment of the transportation control measures of the State implementation plan required by the Clean Air Act. (4) CONSULTATION.—

16 (A) IN GENERAL.—In each metropolitan area, the metropolitan planning organization shall consult, as appropriate, with State and local agencies responsible for land protection, con- servation, and historic preservation concerning the development of a long-range transportation plan. (B) ISSUES.—The consultation shall involve, as appropriate— (i) comparison of transportation plans with State conservation plans or maps, if available; or (ii) comparison of transportation plans to inventories of natural or historic resources, if available. (5) PARTICIPATION BY INTERESTED PARTIES.— (A) IN GENERAL.—Each metropolitan plan- ning organization shall provide citizens, af- fected public agencies, representatives of public transportation employees, freight shippers, providers of freight transportation services, private providers of transportation, representa- tives of users of public transportation, repre- sentatives of users of pedestrian walkways and bicycle transportation facilities, representa- tives of the disabled, and other interested par- ties with a reasonable opportunity to comment on the transportation plan. (B) CONTENTS OF PARTICIPATION PLAN.—A participation plan— (i) shall be developed in consultation with all interested parties; and (ii) shall provide that all interested par- ties have reasonable opportunities to comment on the contents of the transpor- tation plan. (C) METHODS.—In carrying out subpara- graph (A), the metropolitan planning organiza- tion shall, to the maximum extent practica- ble— (i) hold any public meetings at conven- ient and accessible locations and times; (ii) employ visualization techniques to describe plans; and (iii) make public information available in electronically accessible format and means, such as the World Wide Web, as appropri- ate to afford reasonable opportunity for consideration of public information under subparagraph (A). (6) PUBLICATION.—A transportation plan involv- ing Federal participation shall be published or oth- erwise made readily available by the metropolitan planning organization for public review, including (to the maximum extent practicable) in electroni- cally accessible formats and means, such as the World Wide Web, approved by the metropolitan planning organization and submitted for informa- tion purposes to the Governor at such times and in such manner as the Secretary shall establish. (7) SELECTION OF PROJECTS FROM ILLUSTRATIVE LIST.—Notwithstanding paragraph (2)(C), a State or metropolitan planning organization shall not be required to select any project from the illustrative list of additional projects included in the financial plan under paragraph (2)(C). (j) METROPOLITAN TIP.— (1) DEVELOPMENT.— (A) IN GENERAL.—In cooperation with the State and any affected public transportation operator, the metropolitan planning organiza- tion designated for a metropolitan area shall develop a TIP for the area for which the or- ganization is designated. (B) OPPORTUNITY FOR COMMENT.—In develop- ing the TIP, the metropolitan planning organi- zation, in cooperation with the State and any affected public transportation operator, shall provide an opportunity for participation by in- terested parties in the development of the pro- gram, in accordance with subsection (i)(5). (C) FUNDING ESTIMATES.—For the purpose of developing the TIP, the metropolitan planning organization, public transportation agency, and State shall cooperatively develop estimates of funds that are reasonably expected to be avail- able to support program implementation. (D) UPDATING AND APPROVAL.—The TIP shall be updated at least once every 4 years and shall be approved by the metropolitan planning organization and the Governor. (2) CONTENTS.— (A) PRIORITY LIST.—The TIP shall include a priority list of proposed federally supported projects and strategies to be carried out within each 4-year period after the initial adoption of the TIP. (B) FINANCIAL PLAN.—The TIP shall include a financial plan that— (i) demonstrates how the TIP can be im- plemented; (ii) indicates resources from public and private sources that are reasonably ex- pected to be available to carry out the pro- gram; (iii) identifies innovative financing tech- niques to finance projects, programs, and strategies; and (iv) may include, for illustrative pur- poses, additional projects that would be in- cluded in the approved TIP if reasonable additional resources beyond those identi- fied in the financial plan were available. (C) DESCRIPTIONS.—Each project in the TIP shall include sufficient descriptive material (such as type of work, termini, length, and other similar factors) to identify the project or phase of the project. (3) INCLUDED PROJECTS.—

17 (A) PROJECTS UNDER THIS CHAPTER AND TITLE 23.—A TIP developed under this subsection for a metropolitan area shall include the projects within the area that are proposed for funding under this chapter and chapter 1 of title 23. (B) PROJECTS UNDER CHAPTER 2 OF TITLE 23.— (i) REGIONALLY SIGNIFICANT PROJECTS.— Regionally significant projects proposed for funding under chapter 2 of title 23 shall be identified individually in the transporta- tion improvement program. (ii) OTHER PROJECTS.—Projects proposed for funding under chapter 2 of title 23 that are not determined to be regionally signifi- cant shall be grouped in one line item or identified individually in the transporta- tion improvement program. (C) CONSISTENCY WITH LONG-RANGE TRANSPORTATION PLAN.—Each project shall be consistent with the long-range transportation plan developed under subsection (i) for the area. (D) REQUIREMENT OF ANTICIPATED FULL FUNDING.—The program shall include a project, or an identified phase of a project, only if full funding can reasonably be anticipated to be available for the project within the time period contemplated for completion of the project. (4) NOTICE AND COMMENT.—Before approving a TIP, a metropolitan planning organization, in coop- eration with the State and any affected public transportation operator, shall provide an opportu- nity for participation by interested parties in the development of the program, in accordance with subsection (i)(5). (5) SELECTION OF PROJECTS.— (A) IN GENERAL.—Except as otherwise pro- vided in subsection (k)(4) and in addition to the TIP development required under paragraph (1), the selection of federally funded projects in metropolitan areas shall be carried out, from the approved TIP— (i) by— (I) in the case of projects under title 23, the State; and (II) in the case of projects under this chapter, the designated recipients of public transportation funding; and (ii) in cooperation with the metropolitan planning organization. (B) MODIFICATIONS TO PROJECT PRIORITY.— Notwithstanding any other provision of law, action by the Secretary shall not be required to advance a project included in the approved TIP in place of another project in the program. (6) SELECTION OF PROJECTS FROM ILLUSTRATIVE LIST.— (A) NO REQUIRED SELECTION.— Notwithstanding paragraph (2)(B)(iv), a State or metropolitan planning organization shall not be required to select any project from the il- lustrative list of additional projects included in the financial plan under paragraph (2)(B)(iv). (B) REQUIRED ACTION BY THE SECRETARY.— Action by the Secretary shall be required for a State or metropolitan planning organization to select any project from the illustrative list of additional projects included in the financial plan under paragraph (2)(B)(iv) for inclusion in an approved TIP. (7) PUBLICATION.— (A) PUBLICATION OF TIPS.—A TIP involving Federal participation shall be published or oth- erwise made readily available by the metro- politan planning organization for public re- view. (B) PUBLICATION OF ANNUAL LISTINGS OF PROJECTS.—An annual listing of projects, in- cluding investments in pedestrian walkways and bicycle transportation facilities, for which Federal funds have been obligated in the pre- ceding year shall be published or otherwise made available by the cooperative effort of the State, transit operator, and metropolitan plan- ning organization for public review. The listing shall be consistent with the categories identi- fied in the TIP. (C) RULEMAKING.—Not later than 180 days after the date of enactment of the Federal Pub- lic Transportation Act of 2005, the Secretary shall issue regulations setting standards for the listing required by subparagraph (B) and specifying the types of data to be included in such list, including sufficient information about each project to identify its type, location, and amount obligated. (k) TRANSPORTATION MANAGEMENT AREAS.— (1) IDENTIFICATION AND DESIGNATION.— (A) REQUIRED IDENTIFICATION.—The Secre- tary shall identify as a transportation man- agement area each urbanized area (as defined by the Bureau of the Census) with a population of over 200,000 individuals. (B) DESIGNATION ON REQUEST.—The Secre- tary shall designate any additional area as a transportation management area on the re- quest of the Governor and the metropolitan planning organization designated for the area. (2) TRANSPORTATION PLANS.—In a metropolitan planning area serving a transportation manage- ment area, transportation plans shall be based on a continuing and comprehensive transportation planning process carried out by the metropolitan planning organization in cooperation with the State and public transportation operators. (3) CONGESTION MANAGEMENT PROCESS.—Within a metropolitan planning area serving a transporta- tion management area, the transportation planning process under this section shall address congestion management through a process that provides for ef-

18 fective management and operation, based on a co- operatively developed and implemented metropoli- tan-wide strategy, of new and existing transporta- tion facilities eligible for funding under this chapter and title 23 through the use of travel demand re- duction and operational management strategies. The Secretary shall establish an appropriate phase- in schedule for compliance with the requirements of this section but no sooner than one year after the identification of a transportation management area. (4) SELECTION OF PROJECTS.— (A) In general.—All federally funded projects carried out within the boundaries of a metro- politan planning area serving a transportation management area under title 23 (excluding projects carried out on the National Highway System and projects carried out under the bridge program or the Interstate maintenance program) or under this chapter shall be se- lected for implementation from the approved TIP by the metropolitan planning organization designated for the area in consultation with the State and any affected public transporta- tion operator. (B) National highway system projects.— Projects carried out within the boundaries of a metropolitan planning area serving a transpor- tation management area on the National Highway System and projects carried out within such boundaries under the bridge pro- gram or the Interstate maintenance program under title 23 shall be selected for implementa- tion from the approved TIP by the State in co- operation with the metropolitan planning or- ganization designated for the area. (5) CERTIFICATION.— (A) IN GENERAL.—The Secretary shall— (i) ensure that the metropolitan plan- ning process of a metropolitan planning organization serving a transportation management area is being carried out in accordance with applicable provisions of Federal law; and (ii) subject to subparagraph (B), certify, not less often than once every 4 years, that the requirements of this paragraph are met with respect to the metropolitan plan- ning process. (B) REQUIREMENTS FOR CERTIFICATION.—The Secretary may make the certification under subparagraph (A) if— (i) the transportation planning process complies with the requirements of this sec- tion and other applicable requirements of Federal law; and (ii) there is a TIP for the metropolitan planning area that has been approved by the metropolitan planning organization and the Governor. (C) EFFECT OF FAILURE TO CERTIFY.— (i) WITHHOLDING OF PROJECT FUNDS.—If a metropolitan planning process of a metro- politan planning organization serving a transportation management area is not certified, the Secretary may withhold up to 20 percent of the funds attributable to the metropolitan planning area of the metro- politan planning organization for projects funded under this chapter and title 23. (ii) RESTORATION OF WITHHELD FUNDS.— The withheld funds shall be restored to the metropolitan planning area at such time as the metropolitan planning process is certified by the Secretary. (D) REVIEW OF CERTIFICATION.—In making certification determinations under this para- graph, the Secretary shall provide for public involvement appropriate to the metropolitan area under review. (l) ABBREVIATED PLANS FOR CERTAIN AREAS.— (1) IN GENERAL.—Subject to paragraph (2), in the case of a metropolitan area not designated as a transportation management area under this sec- tion, the Secretary may provide for the develop- ment of an abbreviated transportation plan and TIP for the metropolitan planning area that the Secretary determines is appropriate to achieve the purposes of this section, taking into account the complexity of transportation problems in the area. (2) NONATTAINMENT AREAS.—The Secretary may not permit abbreviated plans or TIPs for a metro- politan area that is in nonattainment for ozone or carbon monoxide under the Clean Air Act. (m) ADDITIONAL REQUIREMENTS FOR CERTAIN NONATTAINMENT AREAS.— (1) IN GENERAL.—Notwithstanding any other pro- visions of this chapter or title 23, for transportation management areas classified as nonattainment for ozone or carbon monoxide pursuant to the Clean Air Act, Federal funds may not be advanced in such area for any highway project that will result in a significant increase in the carrying capacity for single-occupant vehicles unless the project is ad- dressed through a congestion management process. (2) APPLICABILITY.—This subsection applies to a nonattainment area within the metropolitan plan- ning area boundaries determined under subsection (e). (n) LIMITATION ON STATUTORY CONSTRUCTIONS.— Nothing in this section shall be construed to confer on a metropolitan planning organization the authority to impose legal requirements on any transportation facil- ity, provider, or project not eligible under this chapter or title 23. (o) FUNDING.—Funds set aside under section 5305(g) of this title or section 104(f) of title 23 shall be available to carry out this section. (p) CONTINUATION OF CURRENT REVIEW PRACTICE.— Since plans and TIPs described in this section are sub-

19 ject to a reasonable opportunity for public comment, since individual projects included in plans and TIPs are subject to review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), and since decisions by the Secretary concerning plans and TIPs described in this section have not been reviewed under such Act as of January 1, 1997, any decision by the Sec- retary concerning a plan or TIP described in this sec- tion shall not be considered to be a Federal action sub- ject to review under such Act. SECTION 5304.49 STATEWIDE TRANSPORTATION PLANNING. (a) GENERAL REQUIREMENTS.— (1) DEVELOPMENT OF PLANS AND PROGRAMS.—To accomplish the objectives stated in section 5303(a), each State shall develop a statewide transportation plan and a statewide transportation improvement program for all areas of the State, subject to section 5303. (2) CONTENTS.—The statewide transportation plan and the transportation improvement program developed for each State shall provide for the de- velopment and integrated management and opera- tion of transportation systems and facilities (includ- ing accessible pedestrian walkways and bicycle transportation facilities) that will function as an in- termodal transportation system for the State and an integral part of an intermodal transportation system for the United States. (3) PROCESS OF DEVELOPMENT.—The process for developing the statewide plan and the transporta- tion improvement program shall provide for consid- eration of all modes of transportation and the poli- cies stated in section 5303(a), and shall be continuing, cooperative, and comprehensive to the degree appropriate, based on the complexity of the transportation problems to be addressed. (b) COORDINATION WITH METROPOLITAN PLANNING; STATE IMPLEMENTATION PLAN.—A State shall— (1) coordinate planning carried out under this section with the transportation planning activities carried out under section 5303 for metropolitan ar- eas of the State and with statewide trade and eco- nomic development planning activities and related multistate planning efforts; and (2) develop the transportation portion of the State implementation plan as required by the Clean Air Act (42 U.S.C. 7401 et seq.). (c) INTERSTATE AGREEMENTS.— (1) IN GENERAL.—The consent of Congress is granted to 2 or more States entering into agree- ments or compacts, not in conflict with any law of the United States, for cooperative efforts and mu- tual assistance in support of activities authorized 49 Sec. 3006(a) of Pub. L. No. 109-59 amended this section generally. See app. D for section before amendment and legis- lative history. under this section related to interstate areas and localities in the States and establishing authorities the States consider desirable for making the agreements and compacts effective. (2) RESERVATION OF RIGHTS.—The right to alter, amend, or repeal interstate compacts entered into under this subsection is expressly reserved. (d) SCOPE OF PLANNING PROCESS.— (1) IN GENERAL.—Each State shall carry out a statewide transportation planning process that provides for consideration and implementation of projects, strategies, and services that will— (A) support the economic vitality of the United States, the States, nonmetropolitan ar- eas, and metropolitan areas, especially by ena- bling global competitiveness, productivity, and efficiency; (B) increase the safety of the transportation system for motorized and nonmotorized users; (C) increase the security of the transporta- tion system for motorized and nonmotorized users; (D) increase the accessibility and mobility of people and freight; (E) protect and enhance the environment, promote energy conservation, improve the quality of life, and promote consistency be- tween transportation improvements and State and local planned growth and economic devel- opment patterns; (F) enhance the integration and connectivity of the transportation system, across and be- tween modes throughout the State, for people and freight; (G) promote efficient system management and operation; and (H) emphasize the preservation of the exist- ing transportation system. (2) FAILURE TO CONSIDER FACTORS.—The failure to consider any factor specified in paragraph (1) shall not be reviewable by any court under this chapter, title 23, subchapter II of chapter 5 of title 5, or chapter 7 of title 5 in any matter affecting a state- wide transportation plan, the transportation im- provement program, a project or strategy, or the certification of a planning process. (e) ADDITIONAL REQUIREMENTS.—In carrying out planning under this section, each State shall consider, at a minimum— (1) with respect to nonmetropolitan areas, the concerns of affected local officials with responsibil- ity for transportation; (2) the concerns of Indian tribal governments and Federal land management agencies that have ju- risdiction over land within the boundaries of the State; and (3) coordination of transportation plans, the transportation improvement program, and plan- ning activities with related planning activities be-

20 ing carried out outside of metropolitan planning ar- eas and between States. (f) LONG-RANGE STATEWIDE TRANSPORTATION PLAN.— (1) DEVELOPMENT.—Each State shall develop a long-range statewide transportation plan, with a minimum 20-year forecast period for all areas of the State, that provides for the development and implementation of the intermodal transportation system of the State. (2) CONSULTATION WITH GOVERNMENTS.— (A) METROPOLITAN AREAS.—The statewide transportation plan shall be developed for each metropolitan area in the State in cooperation with the metropolitan planning organization designated for the metropolitan area under section 5303. (B) NONMETROPOLITAN AREAS.—With respect to nonmetropolitan areas, the statewide trans- portation plan shall be developed in consulta- tion with affected nonmetropolitan officials with responsibility for transportation. The Sec- retary shall not review or approve the consul- tation process in each State. (C) INDIAN TRIBAL AREAS.—With respect to each area of the State under the jurisdiction of an Indian tribal government, the statewide transportation plan shall be developed in con- sultation with the tribal government and the Secretary of the Interior. (D) CONSULTATION, COMPARISON, AND CONSIDERATION.— (i) IN GENERAL.—The long-range trans- portation plan shall be developed, as ap- propriate, in consultation with State, tribal, and local agencies responsible for land use management, natural resources, environmental protection, conservation, and historic preservation. (ii) COMPARISON AND CONSIDERATION.— Consultation under clause (i) shall involve comparison of transportation plans to State and tribal conservation plans or maps, if available, and comparison of transportation plans to inventories of natural or historic resources, if available. (3) PARTICIPATION BY INTERESTED PARTIES.— (A) IN GENERAL.—In developing the statewide transportation plan, the State shall provide citizens, affected public agencies, representa- tives of public transportation employees, freight shippers, private providers of transpor- tation, representatives of users of public trans- portation, representatives of users of pedes- trian walkways and bicycle transportation facilities, representatives of the disabled, pro- viders of freight transportation services, and other interested parties with a reasonable op- portunity to comment on the proposed plan. (B) METHODS.—In carrying out subpara- graph (A), the State shall, to the maximum ex- tent practicable— (i) hold any public meetings at conven- ient and accessible locations and times; (ii) employ visualization techniques to describe plans; and (iii) make public information available in electronically accessible format and means, such as the World Wide Web, as appropri- ate to afford reasonable opportunity for consideration of public information under subparagraph (A). (4) MITIGATION ACTIVITIES.— (A) IN GENERAL.—A long-range transporta- tion plan shall include a discussion of potential environmental mitigation activities and poten- tial areas to carry out these activities, includ- ing activities that may have the greatest poten- tial to restore and maintain the environmental functions affected by the plan. (B) CONSULTATION.—The discussion shall be developed in consultation with Federal, State, and tribal wildlife, land management, and regulatory agencies. (5) FINANCIAL PLAN.—The statewide transporta- tion plan may include a financial plan that demon- strates how the adopted statewide transportation plan can be implemented, indicates resources from public and private sources that are reasonably ex- pected to be made available to carry out the plan, and recommends any additional financing strate- gies for needed projects and programs. The finan- cial plan may include, for illustrative purposes, ad- ditional projects that would be included in the adopted statewide transportation plan if reasonable additional resources beyond those identified in the financial plan were available. (6) SELECTION OF PROJECTS FROM ILLUSTRATIVE LIST.—A State shall not be required to select any project from the illustrative list of additional pro- jects included in the financial plan described in paragraph (5). (7) EXISTING SYSTEM.—The statewide transporta- tion plan should include capital, operations and management strategies, investments, procedures, and other measures to ensure the preservation and most efficient use of the existing transportation system. (8) PUBLICATION OF LONG-RANGE TRANSPORTATION PLANS.—Each long-range transportation plan pre- pared by a State shall be published or otherwise made available, including (to the maximum extent practicable) in electronically accessible formats and means, such as the World Wide Web. (g) STATEWIDE TRANSPORTATION IMPROVEMENT PROGRAM.— (1) DEVELOPMENT.—Each State shall develop a statewide transportation improvement program for all areas of the State. Such program shall cover a

21 period of 4 years and be updated every 4 years or more frequently if the Governor elects to update more frequently. (2) CONSULTATION WITH GOVERNMENTS.— (A) METROPOLITAN AREAS.—With respect to each metropolitan area in the State, the pro- gram shall be developed in cooperation with the metropolitan planning organization desig- nated for the metropolitan area under section 5303. (B) NONMETROPOLITAN AREAS.—With respect to each nonmetropolitan area in the State, the program shall be developed in consultation with affected nonmetropolitan local officials with responsibility for transportation. The Sec- retary shall not review or approve the specific consultation process in the State. (C) INDIAN TRIBAL AREAS.—With respect to each area of the State under the jurisdiction of an Indian tribal government, the program shall be developed in consultation with the tribal government and the Secretary of the Interior. (3) PARTICIPATION BY INTERESTED PARTIES.—In de- veloping the program, the State shall provide citi- zens, affected public agencies, representatives of public transportation employees, freight shippers, private providers of transportation, providers of freight transportation services, representatives of users of public transportation, representatives of users of pedestrian walkways and bicycle transpor- tation facilities, representatives of the disabled, and other interested parties with a reasonable op- portunity to comment on the proposed program. (4) INCLUDED PROJECTS.— (A) IN GENERAL.—A transportation improve- ment program developed under this subsection for a State shall include federally supported surface transportation expenditures within the boundaries of the State. (B) LISTING OF PROJECTS.—An annual listing of projects for which funds have been obligated in the preceding year in each metropolitan planning area shall be published or otherwise made available by the cooperative effort of the State, transit operator, and the metropolitan planning organization for public review. The listing shall be consistent with the funding categories identified in each metropolitan transportation improvement program. (C) PROJECTS UNDER CHAPTER 2 OF TITLE 23.— (i) REGIONALLY SIGNIFICANT PROJECTS.— Regionally significant projects proposed for funding under chapter 2 of title 23 shall be identified individually in the transporta- tion improvement program. (ii) OTHER PROJECTS.—Projects proposed for funding under chapter 2 of title 23 that are not determined to be regionally signifi- cant shall be grouped in 1 line item or identified individually in the transporta- tion improvement program. (D) CONSISTENCY WITH STATEWIDE TRANSPORTATION PLAN.—Each project shall be— (i) consistent with the statewide trans- portation plan developed under this sec- tion for the State; (ii) identical to the project or phase of the project as described in an approved metropolitan transportation plan; and (iii) in conformance with the applicable State air quality implementation plan de- veloped under the Clean Air Act, if the pro- ject is carried out in an area designated as nonattainment for ozone, particulate mat- ter, or carbon monoxide under that Act. (E) REQUIREMENT OF ANTICIPATED FULL FUNDING.—The transportation improvement program shall include a project, or an identi- fied phase of a project, only if full funding can reasonably be anticipated to be available for the project within the time period contem- plated for completion of the project. (F) FINANCIAL PLAN.—The transportation im- provement program may include a financial plan that demonstrates how the approved transportation improvement program can be implemented, indicates resources from public and private sources that are reasonably ex- pected to be made available to carry out the transportation improvement program, and rec- ommends any additional financing strategies for needed projects and programs. The finan- cial plan may include, for illustrative purposes, additional projects that would be included in the adopted transportation plan if reasonable additional resources beyond those identified in the financial plan were available. (G) SELECTION OF PROJECTS FROM ILLUSTRATIVE LIST.— (i) NO REQUIRED SELECTION.— Notwithstanding subparagraph (F), a State shall not be required to select any project from the illustrative list of addi- tional projects included in the financial plan under subparagraph (F). (ii) REQUIRED ACTION BY THE SECRETARY.—Action by the Secretary shall be required for a State to select any project from the illustrative list of additional pro- jects included in the financial plan under subparagraph (F) for inclusion in an ap- proved transportation improvement pro- gram. (H) PRIORITIES.—The transportation im- provement program shall reflect the priorities for programming and expenditures of funds, including transportation enhancement activi- ties, required by this chapter and title 23.

22 (5) PROJECT SELECTION FOR AREAS OF LESS THAN 50,000 POPULATION.—Projects carried out in areas with populations of less than 50,000 individuals shall be selected, from the approved transportation improvement program (excluding projects carried out on the National Highway System and projects carried out under the bridge program or the Inter- state maintenance program under title 23 or sec- tions 5310, 5311, 5316, and 5317 of this title) by the State in cooperation with the affected nonmetro- politan local officials with responsibility for trans- portation. Projects carried out in areas with popu- lations of less than 50,000 individuals on the National Highway System or under the bridge pro- gram or the Interstate maintenance program under title 23 or sections 5310, 5311, 5316, and 5317 of this title shall be selected, from the approved statewide transportation improvement program, by the State in consultation with the affected non- metropolitan local officials with responsibility for transportation. (6) TRANSPORTATION IMPROVEMENT PROGRAM APPROVAL.—Every 4 years, a transportation im- provement program developed under this subsec- tion shall be reviewed and approved by the Secre- tary if based on a current planning finding. (7) PLANNING FINDING.—A finding shall be made by the Secretary at least every 4 years that the transportation planning process through which statewide transportation plans and programs are developed is consistent with this section and sec- tion 5303. (8) MODIFICATIONS OF PROJECT PRIORITY.— Notwithstanding any other provision of law, action by the Secretary shall not be required to advance a project included in the approved transportation im- provement program in place of another project in the program. (h) FUNDING.—Funds set aside pursuant to section 5305(g) of this title and section 104(i) of title 23 shall be available to carry out this section. (i) TREATMENT OF CERTAIN STATE LAWS AS CONGESTION MANAGEMENT PROCESSES.—For purposes of this section and section 5303, and sections 134 and 135 of title 23, State laws, rules, or regulations pertaining to conges- tion management systems or programs may constitute the congestion management process under this section and section 5303, and sections 134 and 135 of title 23, if the Secretary finds that the State laws, rules, or regula- tions are consistent with, and fulfill the intent of, the purposes of this section, section 5303, and sections 134 and 135 of title 23, as appropriate. (j) CONTINUATION OF CURRENT REVIEW PRACTICE.— Since the statewide transportation plan and the trans- portation improvement program described in this sec- tion are subject to a reasonable opportunity for public comment, since individual projects included in the statewide transportation plans and the transportation improvement program are subject to review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), and since decisions by the Secretary con- cerning statewide transportation plans or the transpor- tation improvement program described in this section have not been reviewed under such Act as of January 1, 1997, any decision by the Secretary concerning a met- ropolitan or statewide transportation plan or the trans- portation improvement program described in this sec- tion shall not be considered to be a Federal action subject to review under such Act. SECTION 5305.50 PLANNING PROGRAMS. (a) STATE DEFINED.—In this section, the term “State” means a State of the United States, the District of Co- lumbia, and Puerto Rico. (b) GENERAL AUTHORITY.— (1) GRANTS AND AGREEMENTS.—Under criteria es- tablished by the Secretary, the Secretary may award grants to States, authorities of the States, metropolitan planning organizations, and local governmental authorities, and make agreements with other departments, agencies, or instrumen- talities of the Government to— (A) develop transportation plans and pro- grams; (B) plan, engineer, design, and evaluate a public transportation project; and (C) conduct technical studies relating to pub- lic transportation. (2) ELIGIBLE ACTIVITIES.—Activities eligible under paragraph (1) include the following: (A) Studies related to management, plan- ning, operations, capital requirements, and economic feasibility. (B) Evaluating previously financed projects. (C) Peer reviews and exchanges of technical data, information, assistance, and related ac- tivities in support of planning and environ- mental analyses among metropolitan planning organizations and other transportation plan- ners. (D) Other similar and related activities pre- liminary to and in preparation for constructing, acquiring, or improving the operation of facili- ties and equipment. (c) PURPOSE.—To the extent practicable, the Secre- tary shall ensure that amounts appropriated or made available under section 5338 to carry out this section and sections 5303, 5304, and 5306 are used to support balanced and comprehensive transportation planning that considers the relationships among land use and all transportation modes, without regard to the program- matic source of the planning amounts. (d) METROPOLITAN PLANNING PROGRAM.— (1) APPORTIONMENT TO STATES.— (A) IN GENERAL.—The Secretary shall appor- tion 80 percent of the amounts made available 50 Sec. 3007(a) of Pub. L. No. 109-59 amended this section generally. See app. D for section before amendment and legis- lative history.

23 under subsection (g)(1) among the States to carry out sections 5303 and 5306 in the ratio that— (i) the population of urbanized areas in each State, as shown by the latest avail- able decennial census of population; bears to (ii) the total population of urbanized ar- eas in all States, as shown by that census. (B) MINIMUM APPORTIONMENT.— Notwithstanding subparagraph (A), a State may not receive less than 0.5 percent of the amount apportioned under this paragraph. (2) ALLOCATION TO MPO’S.—Amounts apportioned to a State under paragraph (1) shall be made avail- able, not later than 30 days after the date of appor- tionment, to metropolitan planning organizations in the State designated under this section under a formula that— (A) considers population of urbanized areas; (B) provides an appropriate distribution for urbanized areas to carry out the cooperative processes described in this section; (C) the State develops in cooperation with the metropolitan planning organizations; and (D) the Secretary approves. (3) SUPPLEMENTAL AMOUNTS.— (A) IN GENERAL.—The Secretary shall appor- tion 20 percent of the amounts made available under subsection (g)(1) among the States to supplement allocations made under paragraph (1) for metropolitan planning organizations. (B) FORMULA.—The Secretary shall appor- tion amounts referred to in subparagraph (A) under a formula that reflects the additional cost of carrying out planning, programming, and project selection responsibilities under sec- tions 5303 and 5306 in certain urbanized ar- eas. (e) STATE PLANNING AND RESEARCH PROGRAM.— (1) APPORTIONMENT TO STATES.— (A) IN GENERAL.—The Secretary shall appor- tion the amounts made available under subsec- tion (g)(2) among the States for grants and con- tracts to carry out this section and sections 5304, 5306, 5315, and 5322 in the ratio that— (i) the population of urbanized areas in each State, as shown by the latest avail- able decennial census; bears to (ii) the population of urbanized areas in all States, as shown by that census. (B) MINIMUM APPORTIONMENT.— Notwithstanding subparagraph (A), a State may not receive less than 0.5 percent of the amount apportioned under this paragraph. (2) SUPPLEMENTAL AMOUNTS.—A State, as the State considers appropriate, may authorize part of the amount made available under this subsection to be used to supplement amounts made available un- der subsection (d). (f) GOVERNMENT’S SHARE OF COSTS.—The Govern- ment’s share of the cost of an activity funded using amounts made available under this section may not exceed 80 percent of the cost of the activity unless the Secretary determines that it is in the interests of the Government not to require a State or local match. (g) ALLOCATION OF FUNDS.—Of the funds made avail- able by or appropriated to carry out this section under section 5338(c) for fiscal years 2005 through 2009— (1) 82.72 percent shall be available for the metro- politan planning program under subsection (d); and (2) 17.28 percent shall be available to carry out subsection (e). (h) AVAILABILITY OF FUNDS.—Funds apportioned un- der this section to a State that have not been obligated in the 3-year period beginning after the last day of the fiscal year for which the funds are authorized shall be reapportioned among the States. SECTION 5306.51 PRIVATE ENTERPRISE PARTICIPATION IN METROPOLITAN PLANNING AND TRANSPORTATION IMPROVEMENT PROGRAMS AND RELATIONSHIP TO OTHER LIMITATIONS. (a) PRIVATE ENTERPRISE PARTICIPATION.—A plan or program required by section 5303, 5304, or 5305 of this title shall encourage to the maximum extent feasible, as determined by local policies, criteria, and decisionmak- ing,52 the participation of private enterprise. If equip- ment or a facility already being used in an urban area is to be acquired under this chapter, the program shall provide that it be improved so that it will better serve the transportation needs of the area. (b) RELATIONSHIP TO OTHER LIMITATIONS.—Sections 5303–5305 of this title do not authorize— (1) a metropolitan planning organization to im- pose a legal requirement on a transportation facil- ity, provider, or project not eligible under this chap- ter or title 23; and (2) intervention in the management of a trans- portation authority. 51 Pub. L. No. 103-272 codified portions of § 8 of the Federal Transit Act to constitute this section; see app. B; and omitted text as surplus in subsec. (a). 52 Sec. 3008 of Pub. L. No. 109-59 inserted “, as determined by local policies, criteria, and decisionmaking,”.

24 SECTION 5307.53 54 URBANIZED AREA FORMULA GRANTS.55 (a) DEFINITIONS.—In this section, the following defini- tions apply:56 (1) ASSOCIATED CAPITAL MAINTENANCE ITEMS.— The term57 “associated capital maintenance items” means— (A)58 equipment, tires, tubes,59 and material, each costing at least .5 percent60 of the current fair market value of rolling stock comparable to the rolling stock for which the equipment, tires, tubes, and material are to be used; and (B) reconstruction of equipment and mate- rial, each of which after reconstruction will have a fair market value of at least .5 percent of the current fair market value of rolling stock comparable to the rolling stock for which the equipment and material will be used. (2) DESIGNATED RECIPIENT.—The term61 “desig- nated recipient” means— (A)62 an entity designated, in accordance with the planning process under sections 5303, 53 Sec. 303 of Pub. L. No. 97-424 added § 9 to the Federal Transit Act. The prior § 9, which was entitled “Grants for Technical Studies”, was added by sec. 2(a) of Pub. L. No. 89- 562 and repealed by sec. 305(a) of Pub. L. No. 95-599. Sec. 2(a) of Pub. L. No. 89-562 redesignated the original § 9, which was entitled "General Provisions", as § 12. 54 Pub. L. No. 103-272 codified § 334(c) of Pub. L. No. 101- 164 and portions of § 9 of the Federal Transit Act to constitute this section; see app. B; omitted text as surplus in subsecs. (a), (b), (c), (d), (e), (f), (g), (i), (l), and (n); substituted text for con- sistency or clarity in subsecs. (a), (d), (f), (g), (i), (l), and (n); and added text for clarity in subsecs. (b), (c), (d), and (n). 55 Sec. 3007(a)(1) of Pub. L. No. 105-178 substituted “Urban- ized area formula grants” for “Block grants”. 56 Sec. 3007(b)(1) of Pub. L. No. 105-178 struck “In this sec- tion—” and inserted “In this section, the following definitions apply:”. 57 Sec. 3007(b)(2) of Pub. L. No. 105-178 inserted the head- ing and “the term”. 58 Sec. 3009(b)(1) of Pub. L. No. 109-59 inserted the designa- tion of subpara. (A) and added subpara. (B). 59 Sec. 309(b)(1) of Pub. L. No. 100-17 amended the defini- tion of “associated capital maintenance items” to include “tires” and “tubes”. 60 Sec. 309(b)(2) of Pub. L. No. 100-17 amended the precodi- fication provision by changing the requirement from 1 percent to ½ of 1 percent. 61 Sec. 3007(b)(3) of Pub. L. No. 105-178 inserted the head- ing and “the term”. 62 Sec. 3009(b)(2) of Pub. L. No. 109-59 generally amended this subparagraph. Before amendment, the subparagraph read: (A) a person designated, consistent with the planning process under sections 5303-5306 of this title, by the chief executive offi- cer of a State, responsible local officials, and publicly owned op- erators of mass transportation to receive and apportion amounts under section 5336 of this title that are attributable to transpor- tation management areas established under section 5305(a) of this title; or 5304, and 5306, by the chief executive officer of a State, responsible local officials, and publicly owned operators of public transportation, to re- ceive and apportion amounts under section 5336 that are attributable to transportation management areas identified under section 5303; or63 (B) a State or regional authority if the au- thority is responsible under the laws of a State for a capital project and for financing and di- rectly providing public transportation.64 (b) GENERAL AUTHORITY.—(1)65 GRANTS.—The Secretary may make grants under this section for— (A) capital projects and associated capital maintenance items; (B) planning; (C) transit enhancements; (D) operating costs of equipment and facili- ties for use in public transportation in an ur- banized area with a population of less than 200,000; (E) operating costs of equipment and facili- ties for use in public transportation in a por- tion or portions of an urbanized area with a population of at least 200,000, but not more than 225,000, if— (i) the urbanized area includes parts of more than one State; (ii) the portion of the urbanized area in- cludes only one State; 63 Sec. 5(11)(A) of Pub. L. No. 104-287 substituted “title; or” for “title;”. 64 Pub. L. No. 104-287 substituted “transportation.” for “transportation; or” and struck subpara. (C), which read: “a recipient designated under section 5(b)(1) of the Federal Tran- sit Act not later than January 5, 1983.”. 65 Sec. 3009(b)(2) of Pub. L. No. 109-59 struck the text of para. (1) and inserted the text above. Before amendment, the paragraph read: The Secretary of Transportation may make grants under this section for capital projects and to finance the planning and im- provement costs of equipment, facilities, and associated capital maintenance items for use in mass transportation, including the renovation and improvement of historic transportation facilities with related private investment. The Secretary may also make grants under this section to finance the operating cost of equip- ment and facilities for use in mass transportation in an urban- ized area with a population of less than 200,000. Sec. 3007(c)(1) of Pub. L. No. 105-178 substituted “im- provement costs of equipment” for “, improvement, and operat- ing costs of equipment”. Sec. 3007(c)(1) of Pub. L. No. 105-178 inserted the last sentence of the deleted para. (1). Sec. 3007(h)(1) of Pub. L. No. 105-178, as added by sec. 9009(e) of Pub. L. No. 105-206, inserted “The Secretary may make grants under this section from funds made available for fiscal year 1998 to finance the operating costs of equipment and facilities for use in mass transportation in an urbanized area with a population of at least 200,000.” after “The Secre- tary may also make…less than 200,000.”. Sec. 1(1) of Pub. L. No. 107-232 deleted the sentence.

25 (iii) the population of the portion of the urbanized area is less than 30,000; and (iv) the grants will not be used to pro- vide public transportation outside of the portion of the urbanized area; and (F) operating costs of equipment and facili- ties for use in public transportation for local governmental authorities in areas which adopted transit operating and financing plans that became a part of the Houston, Texas, ur- banized area as a result of the 2000 decennial census of population, but lie outside the service area of the principal public transportation agency that serves the Houston urbanized area. (2)66 SPECIAL RULE FOR FISCAL YEARS 2005 THROUGH 2007.— (A) INCREASED FLEXIBILITY.—The Secretary may award grants under this section, from funds made available to carry out this section for each of the fiscal years 2005 through 2007, to finance the operating cost of equipment and facilities for use in mass67 transportation in an urbanized area with a population of at least 200,000, as determined by the 2000 decennial census of population, if— (i) the urbanized area had a population of less than 200,000, as determined by the 1990 decennial census of population; (ii) a portion of the urbanized area was a separate urbanized area with a population of less than 200,000, as determined by the 1990 decennial census of population; (iii) the area was not designated as an urbanized area, as determined by the 1990 decennial census of population; or (iv) a portion of the area was not desig- nated as an urbanized area, as determined by the 1990 decennial census, and received assistance under section 5311 in fiscal year 2002. (B) MAXIMUM AMOUNTS IN FISCAL YEAR 2005.—In fiscal year 2005— (i) amounts made available to any ur- banized area under clause (i) or (ii) of sub- paragraph (A) shall be not more than the amount apportioned in fiscal year 2002 to the urbanized area with a population of 66 Sec. 3009(c)(2) of Pub. L. No. 109-59 struck the existing para. (2) and inserted this paragraph. Sec. 1(3) of Pub. L. No. 107-232 had originally inserted the special rule paragraph, which first covered fiscal year 2003. The period of availability was updated by sec. 8(n)(1) of Pub. L. No. 108-88; sec. 9(n) of Pub. L. No. 108-202; sec. 7(n) of Pub. L. Nos. 108-224, 108-263, and 108-280; sec. 8(n) of Pub. L. No. 108-310; sec. 7(m) of Pub. L. Nos. 109-14, 109-20, 109-35, 109-37, and 109-40. 67 So in § 3009(c)(2). Since this amendment follows § 3002(b)(4), it was assumed that the legislative intent was to use “mass” here instead of “public”. less than 200,000, as determined in the 1990 decennial census of population; (ii) amounts made available to any ur- banized area under subparagraph (A)(iii) shall be not more than the amount appor- tioned to the urbanized area under this section for fiscal year 2003; and (iii) each portion of any area not desig- nated as an urbanized area, as determined by the 1990 decennial census, and eligible to receive funds under subparagraph (A)(iv), shall receive an amount of funds to carry out this section that is not less than the amount the portion of the area re- ceived under section 5311 for fiscal year 2002. (C) MAXIMUM AMOUNTS IN FISCAL YEAR 2006.—In fiscal year 2006— (i) amounts made available to any ur- banized area under clause (i) or (ii) of sub- paragraph (A) shall be not more than 50 percent of the amount apportioned in fiscal year 2002 to the urbanized area with a population of less than 200,000, as deter- mined in the 1990 decennial census of population; (ii) amounts made available to any ur- banized area under subparagraph (A)(iii) shall be not more than 50 percent of the amount apportioned to the urbanized area under this section for fiscal year 2003; and (iii) each portion of any area not desig- nated as an urbanized area, as determined by the 1990 decennial census, and eligible to receive funds under subparagraph (A)(iv), shall receive an amount of funds to carry out this section that is not less than 50 percent of the amount the portion of the area received under section 5311 for fiscal year 2002. (D) MAXIMUM AMOUNTS IN FISCAL YEAR 2007.—In fiscal year 2007— (i) amounts made available to any ur- banized area under clause (i) or (ii) of sub- paragraph (A) shall be not more than 25 percent of the amount apportioned in fiscal year 2002 to the urbanized area with a population of less than 200,000, as deter- mined in the 1990 decennial census of population; (ii) amounts made available to any ur- banized area under subparagraph (A)(iii) shall be not more than 25 percent of the amount apportioned to the urbanized area under this section for fiscal year 2003; and (iii) each portion of any area not desig- nated as an urbanized area, as determined by the 1990 decennial census, and eligible to receive funds under subparagraph (A)(iv), shall receive an amount of funds to

26 carry out this section that is not less than 25 percent of the amount the portion of the area received under section 5311 in fiscal year 2002. (3)68 In a transportation management area desig- nated under section 5305(a) of this title, amounts that cannot be used to pay operating expenses un- der this section also are available for a highway project if— (A) that use is approved, in writing,69 by the metropolitan planning organization under sec- tion 5303 of this title after appropriate notice and an opportunity for comment and appeal is provided to affected public transportation pro- viders; (B) the Secretary decides the amounts are not needed for investment required by the Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.);70 and (C)71 the metropolitan planning organization in approving the use under subparagraph (A) determines that the local transit needs are be- ing addressed. [(4)72] (c) PUBLIC PARTICIPATION REQUIREMENTS.—Each re- cipient of a grant shall— (1) make available to the public information on amounts available to the recipient under this sec- 68 Sec. 1(2) of Pub. L. No. 107-232 redesignated paras. (2) and (3) as paras. (3) and (4), respectively. 69 Sec. 3007(c)(2)(A) of Pub. L. No. 105-178 inserted “, in writing”. 70 Sec. 3013(h) of Pub. L. No. 102-240 added the precodifica- tion version of this subparagraph. 71 Sec. 3007(c)(2)(B)-(4) of Pub. L. No. 105-178 added this subparagraph. 72 Sec. 3009(c)(3) of Pub. L. No. 109-59 struck this para- graph, which read: A project for the reconstruction of equipment and material, each of which after reconstruction will have a fair market value of at least .5 percent of the current fair market value of rolling stock comparable to the rolling stock for which the equipment and material will be used, is a capital project for an associated capital maintenance item under this section. Sec. 309(b)(4) of Pub. L. No. 100-17 added the first version of this provision. It was redesignated from para. (3) to para. (4) by sec. 1(2) of Pub. L. No. 107-232. Sec. 3007(c)(5), (6) of Pub. L. No. 105-178 redesignated then para. (4) as para. (3) and struck former para. (3), which read: “A grant for a capital pro- ject under this section also is available to finance the leasing of equipment and facilities for use in mass transportation, subject to regulations the Secretary prescribes limiting the grant to leasing arrangements that are more cost effective than acquisi- tion or construction”. Sec. 3007(c)(5) of Pub. L. No. 105-178 struck out para. (5), which read: “Amounts under this section are available for a highway project under title 23 only if amounts used for the State or local share of the project are eligible to finance either a highway or mass transportation project.”. The first version of para. (5) was added by sec. 3013(b)(2) of Pub. L. No. 102-240. tion and the program of projects the recipient pro- poses to undertake; (2) develop, in consultation with interested par- ties, including private transportation providers, a proposed program of projects for activities to be fi- nanced; (3) publish a proposed program of projects in a way that affected citizens, private transportation providers, and local elected officials have the oppor- tunity to examine the proposed program and sub- mit comments on the proposed program and the performance of the recipient; (4) provide an opportunity for a public hearing in which to obtain the views of citizens on the pro- posed program of projects; (5)73 ensure that the proposed program of projects provides for the coordination of public transporta- tion services assisted under section 5336 of this ti- tle with transportation services assisted from other United States Government sources; (6) consider comments and views received, espe- cially those of private transportation providers, in preparing the final program of projects; and (7) make the final program of projects available to the public. (d) GRANT RECIPIENT REQUIREMENTS.—A recipient may receive a grant in a fiscal year only if— (1) the recipient, within the time the Secretary prescribes, submits a final program of projects pre- pared under subsection (c) of this section and a cer- tification for that fiscal year that the recipient (in- cluding a person receiving amounts from a chief executive officer of a State under this section)— (A) has or will have the legal, financial, and technical capacity to carry out the program, in- cluding safety and security aspects of the pro- gram;74 (B) has or will have satisfactory continuing control over the use of equipment and facilities; (C) will maintain equipment and facilities; (D) will ensure that elderly and handicapped individuals, or an individual presenting a medicare card issued to that individual under title II or XVIII of the Social Security Act (42 U.S.C. 401 et seq., 1395 et seq.), will be charged during non-peak hours for transportation using or involving a facility or equipment of a project financed under this section75 not more than 50 percent of the peak hour fare; (E) in carrying out a procurement under this section— (i) will use competitive procurement (as defined or approved by the Secretary); 73 Sec. 3013(g) of Pub. L. No. 102-240 added the precodifica- tion version of this paragraph. 74 Sec. 3009(d)(1) of Pub. L. No. 109-59 inserted “, including safety and security aspects of the program”. 75 Sec. 6(7)(A) of Pub. L. No. 103-429 substituted “section” for “chapter”.

27 (ii) will not use a procurement that uses exclusionary or discriminatory specifica- tions; (iii) will comply with applicable Buy America76 laws in carrying out a procure- ment; and (iv) will comply with sections 5323 and 5325;77 (F) has complied with subsection (c) of this section; (G) has available and will provide the re- quired amounts as provided by subsection (e) of this section; (H) will comply with section 5301(a), section 5301(d), and sections 5303 through 5306;78 (I) has a locally developed process to solicit and consider public comment before raising a fare or carrying out a major reduction of trans- portation; (J)(i) will expend for each fiscal year for pub- lic transportation security projects, including increased lighting in or adjacent to a public transportation system (including bus stops, subway stations, parking lots, and garages), increased camera surveillance of an area in or adjacent to that system, providing an emer- gency telephone line to contact law enforce- ment or security personnel in an area in or ad- jacent to that system, and any other project intended to increase the security and safety of an existing or planned public transportation system, at least one percent of the amount the recipient receives for each fiscal year under section 5336 of this title79; or (ii) has decided that the expenditure for security projects is not necessary; and (K)80 in the case of a recipient for an urban- ized area with a population of at least 200,000— (i) will expend not less than 1 percent of the amount the recipient receives each fis- cal year under this section for transit en- hancements, as defined in section 5302(a); and (ii) will submit an annual report listing projects carried out in the preceding fiscal year with those funds; and 76 Sec. 6(7)(B) of Pub. L. No. 103-429 substituted “Buy America” for “Buy American”. 77 Sec. 3009(d)(2) of Pub. L. No. 109-59 made formatting changes to cls. (ii) and (iii) and inserted cl. (iv). 78 Sec. 3009(d)(3) of Pub. L. No. 109-59 struck “sections 5301(a) and (d), 5303–5306, and 5310(a)–(d) of this title” and inserted “section 5301(a), section 5301(d), and sections 5303 through 5306”. 79 Sec. 3013(f) of Pub. L. No. 102-240 added the 1 percent requirement to sec. 9(e0(30(I))). 80 Sec. 3009(d)(4) and (5) of Pub. L. No. 109-59 struck “and” at the end of subpara. (I) and added subpara. (K). (2)81 the Secretary accepts the certification. (e)82 GOVERNMENT'S SHARE OF COSTS.— (1) CAPITAL PROJECTS.—A grant for a capital pro- ject (including associated capital maintenance items) under this section shall be for 80 percent of the net project cost of the project. The recipient may provide additional local matching amounts. (2) OPERATING EXPENSES.—A grant for operating expenses under this section may not exceed 50 per- cent of the net project cost of the project. (3) REMAINING COSTS.—Subject to paragraph (4), the remainder of the net project cost shall be pro- vided— (A) in cash from non-Government sources other than revenues from providing public transportation services; (B) from revenues derived from the sale of advertising and concessions; (C) from an undistributed cash surplus, a re- placement or depreciation cash fund or reserve, or new capital; and (D) from amounts received under a service agreement with a State or local social service agency or private social service organization. (4) USE OF CERTAIN FUNDS.—The prohibitions on the use of funds for matching requirements under section 403(a)(5)(C)(vii) of the Social Security Act (42 U.S.C. 603(a)(5)(C)(vii)) shall not apply to the remainder. (f) STATEWIDE OPERATING ASSISTANCE.—(1) A State authority that is a designated recipient and providing public transportation in at least 2 urbanized areas may apply for operating assistance in an amount not more 81 Sec. 312(f)(1) of Pub. L. No. 100-17 added this require- ment. 82 Sec. 3009(e) of Pub. L. No. 109-59 generally amended this subsection. Before amendment, this subsection read: A grant of the Government for a capital project (including as- sociated capital maintenance items) under this section is for 80 percent of the net project cost of the project. A recipient may provide additional local matching amounts. A grant for operat- ing expenses may not be more than 50 percent of the net project cost of the project. The remainder of the net project cost shall be provided in cash from sources other than amounts of the Gov- ernment or revenues from providing mass transportation (ex- cluding revenues derived from the sale of advertising and con- cessions that are more than the amount of those revenues in the fiscal year that ended September 30, 1985). Transit system amounts that make up the remainder shall be from an undis- tributed cash surplus, a replacement or depreciation cash fund or reserve, or new capital. Sec. 309(c) of Pub. L. No. 100-17 substituted “shall be” for “shall not exceed”. Sec. 309(d) of Pub. L. No. 100-17 added the option of additional local funding (originally phrased: “how- ever, a recipient is permitted to provide additional local match at its option.”). Wording changed during codification. Pub. L. No. 102-302, 106 Stat. 252, states: “For fiscal years 1992 and 1993, funds provided under section 9 of the Federal Transit Act shall be exempt from requirements for any non-Federal share, in the same manner as specified in section 1054 of Public Law 102-204.”. Sec. 312(b) of Pub. L. No. 100-17 amended the pre- codification provision by adding this exclusion.

28 than the amount for all urbanized areas in which it provides transportation. (2) When approving an application under para- graph (1) of this subsection, the Secretary may not reduce the amount of operating assistance ap- proved for another State or a local transportation authority within the affected urbanized areas. (g)83 UNDERTAKING PROJECTS IN ADVANCE.—(1) When a recipient obligates all amounts apportioned to it un- der section 5336 of this title and then carries out a part of a project described in this section (except a project for operating expenses) without amounts of the Govern- ment and according to all applicable procedures and requirements (except to the extent the procedures and requirements limit a State to carrying out a project with amounts of the Government previously appor- tioned to it), the Secretary may pay to the recipient the Government's share of the cost of carrying out that part when additional amounts are apportioned to the recipi- ent under section 5336 if— (A) the recipient applies for the payment; (B) the Secretary approves the payment; and (C) before carrying out that part, the Secre- tary approves the plans and specifications for the part in the same way as for other projects under this section. (2) The Secretary may approve an application under paragraph (1) of this subsection only if an authorization for this section is in effect for the fis- cal year to which the application applies. The Sec- retary may not approve an application if the pay- ment will be more than— (A) the recipient's expected apportionment under section 5336 of this title if the total amount authorized to be appropriated for the fiscal year to carry out this section is appropri- ated; less (B) the maximum amount of the apportion- ment that may be made available for projects for operating expenses under this section. (3) The cost of carrying out that part of a project includes the amount of interest earned and payable on bonds issued by the recipient to the extent pro- ceeds of the bonds are expended in carrying out the part. However, the amount of interest allowed un- der this paragraph may not be more than the most favorable financing terms reasonably available for the project at the time of borrowing. The applicant shall certify, in a manner satisfactory to the Secre- tary, that the applicant has shown reasonable dili- gence in seeking the most favorable financing terms.84 83 Sec. 306(b) of Pub. L. No. 100-17 added § 9(p) of the Fed- eral Transit Act, predecessor to this subsection. Sec. 3009(f) of Pub. L. No. 109-59 struck para. (4), which read: “(4) The Secre- tary shall consider changes in capital project cost indices when determining the estimated cost under paragraph (3) of this subsection.”. 84 Sec. 3007(d) of Pub. L. No. 105-178 struck “the amount by which the estimated cost of carrying out the part (if it would be (h)85 REVIEWS, AUDITS, AND EVALUATIONS.—(1)(A) At least annually, the Secretary shall carry out, or require a recipient to have carried out independently, reviews and audits the Secretary considers appropriate to estab- lish whether the recipient has carried out— (i) the activities proposed under subsec- tion (d) of this section in a timely and ef- fective way and can continue to do so; and (ii) those activities and its certifications and has used amounts of the Government in the way required by law. (B) An audit of the use of amounts of the Government shall comply with the auditing procedures of the Comptroller General. (2) At least once every 3 years, the Secretary shall review and evaluate completely the perform- ance of a recipient in carrying out the recipient's program, specifically referring to compliance with statutory and administrative requirements and the extent to which actual program activities are con- sistent with the activities proposed under subsec- tion (d) of this section and the planning process re- quired under sections 5303–5306 of this title. To the extent practicable, the Secretary shall coordi- nate such reviews with any related State or local reviews.86 (3) The Secretary may take appropriate action consistent with a review, audit, and evaluation un- der this subsection, including making an appropri- ate adjustment in the amount of a grant or with- drawing the grant.87 carried out at the time the part is converted to a regularly fi- nanced project) exceeds the actual cost (except interest) of car- rying out the part,” and inserted “the most favorable financ- ing…financing terms.”. 85 Sec. 3009(a) of Pub. L. No. 109-59 struck subsecs. (h), (j), and (k), and redesignated subsecs. (i), (l), (m), and (n) as sub- secs. (h), (i), (j), and (k), respectively. Before redesignation, subsec. (h), which had been added by sec. 3013(e) of Pub. L. No. 102-240, read: “(h) STREAMLINED ADMINISTRATIVE PROCEDURES.—The Secretary shall prescribe streamlined administrative procedures for complying with the certification requirement under subsection (d)(1)(B) and (C) of this section for track and signal equipment used in existing operations.”. Before redesignation, subsec. (j), which had been added by sec. 312(b)(2) of Pub. L. No. 100-17, read: “(j) REPORTS.—A recipient (including a person receiving amounts from a chief executive officer of a State under this section) shall submit annually to the Secretary a report on the revenues the recipi- ent derives from the sale of advertising and concessions.”. See app. D for text of subsec. (k) before redesignation. 86 Sec. 3007(e) of Pub. L. No. 105-178 inserted this sentence. 87 Sec. 312(f)(2) of Pub. L. No. 100-17 amended the precodifi- cation version of this subsection by striking para. (4), which read as follows: “(4) No grant shall be made under this section to any recipient in any fiscal year unless the Secretary has accepted a certification for such fiscal year submitted by any such person pursuant to subsection (e) of this section.”.

29 (i) PROCUREMENT SYSTEM APPROVAL.—A recipient may request the Secretary to approve its procurement sys- tem. The Secretary shall approve the system for use for procurements financed under section 5336 of this title if, after consulting with the Administrator for Federal Procurement Policy, the Secretary decides the system provides for competitive procurement. Approval of a system under this subsection does not relieve a recipi- ent of the duty to certify under subsection (d)(1)(E) of this section. (j)88 OPERATING FERRIES OUTSIDE URBANIZED AREAS.— A vessel used in ferryboat operations financed under section 5336 of this title that is part of a State-operated ferry system may be operated occasionally outside the urbanized area in which service is provided to accom- modate periodic maintenance if existing ferry service is not reduced significantly by operating outside the area. (k)89 RELATIONSHIP TO OTHER LAWS.— (1) APPLICABLE PROVISIONS.—Sections 5301, 5302, 5303, 5304, 5306, 5315(c), 5318, 5319, 5323, 5325, 5327, 5329, 5330, 5331, 5332, 5333, and 5335 apply to this section and to any grant made under this section. (2) INAPPLICABLE PROVISIONS.— (A) IN GENERAL.—Except as provided by this section, no other provision of this chapter ap- plies to this section or to a grant made under this section. (B) TITLE 5.—The provision of assistance un- der this chapter shall not be construed as bringing within the application of chapter 15 of title 5 any nonsupervisory employee of a public transportation system (or any other agency or entity performing related functions) to which such chapter is otherwise inapplicable. (l)90 TREATMENT.—For the purposes of this section, the United States Virgin Islands shall be treated as an ur- banized area, as defined in section 5302. SECTION 5308.91 CLEAN FUELS FORMULA GRANT PROGRAM. (a) DEFINITION.—In this section, the following defini- tions apply: (1) CLEAN FUEL BUS.—The term “clean fuel bus” means a passenger vehicle used to provide public transportation that— (A) is powered by— (i) compressed natural gas; 88 Sec. 3013(j) of Pub. L. No. 102-240 added subsec. 9(r) to the Federal Transit Act, the precodification version of this subsection. 89 Sec. 3009(g) of Pub. L. No. 109-59 generally amended this subsection. Before amendment, the following sections were applicable to § 5307: §§ 5302; 5318; 5319; 5323(a)(1), (d), and (f); 5332; and 5333. 90 Sec. 3009(h) of Pub. L. No. 109-59 added this subsection. 91 Sec. 3010(a) of Pub. L. No. 109-59 amended this section generally. See app. D for section before amendment and legis- lative history. (ii) liquefied natural gas; (iii) biodiesel fuels; (iv) batteries; (v) alcohol-based fuels; (vi) hybrid electric; (vii) fuel cell; (viii) clean diesel, to the extent allowed under this section; or (ix) other low or zero emissions technol- ogy; and (B) the Administrator of the Environmental Protection Agency has certified sufficiently re- duces harmful emissions. (2) ELIGIBLE PROJECT.—The term “eligible pro- ject”— (A) means a project in a nonattainment or maintenance area described in paragraph (4)(A) for— (i) purchasing or leasing clean fuel buses, including buses that employ a lightweight composite primary structure; (ii) constructing or leasing clean fuel buses or electrical recharging facilities and related equipment for such buses; or (iii) constructing new or improving exist- ing public transportation facilities to ac- commodate clean fuel buses; and (B) at the discretion of the Secretary, may include a project located in a nonattainment or maintenance area described in paragraph (4)(A) relating to clean fuel, biodiesel, hybrid electric, or zero emissions technology buses that exhibit equivalent or superior emissions reductions to existing clean fuel or hybrid elec- tric technologies. (3) Maintenance area.—The term “maintenance area” has the meaning such term has under section 101 of title 23. (4) Recipient.— (A) IN GENERAL.—The term “recipient” means a designated recipient (as defined in section 5307(a)(2)) for an area that, and a recipient for an urbanized area with a population of less than 200,000 that— (i) is designated as a nonattainment area for ozone or carbon monoxide under sec- tion 107(d) of the Clean Air Act (42 U.S.C. 7407(d)); or (ii) is a maintenance area for ozone or carbon monoxide. (B) SMALLER URBANIZED AREAS.—In the case of an urbanized area with a population of less than 200,000, the State in which the area is lo- cated shall act as the recipient for the area un- der this section. (b) AUTHORITY.—The Secretary shall make grants in accordance with this section to recipients to finance eligible projects. (c) CLEAN DIESEL BUSES.—Not more than 25 percent of the amount made available by or appropriated under

30 section 5338 in each fiscal year to carry out this section may be made available to fund clean diesel buses. (d) GRANT REQUIREMENTS.— (1) IN GENERAL.—A grant under this section shall be subject to the requirements of section 5307. (2) GOVERNMENT’S SHARE OF COSTS FOR CERTAIN PROJECTS.—Section 5323(i) applies to projects car- ried out under this section. (e) AVAILABILITY OF FUNDS.—Any amount made avail- able or appropriated under this section— (1) shall remain available to a project for 2 years after the fiscal year for which the amount is made available or appropriated; and (2) that remains unobligated at the end of the pe- riod described in paragraph (1) shall be added to the amount made available in the following fiscal year. SECTION 5309.92 CAPITAL INVESTMENT GRANTS.93 (a) DEFINITIONS.—In this section, the following defini- tions apply: (1) ALTERNATIVES ANALYSIS.—The term “alterna- tives analysis” means a study conducted as part of the transportation planning process required under sections 5303 and 5304, which includes— (A) an assessment of a wide range of public transportation alternatives designed to address a transportation problem in a corridor or su- barea; (B) sufficient information to enable the Sec- retary to make the findings of project justifica- tion and local financial commitment required under this section; (C) the selection of a locally preferred alter- native; and (D) the adoption of the locally preferred al- ternative as part of the long-range transporta- tion plan required under section 5303. (2) MAJOR NEW FIXED GUIDEWAY CAPITAL PROJECT.—The term “major new fixed guideway capital project” means a new fixed guideway capital project for which the Federal assistance provided or to be provided under this section is $75,000,000 or more. (3) NEW FIXED GUIDEWAY CAPITAL PROJECT.—The term “new fixed guideway capital project” means a minimum operable segment of a capital project for 92 Sec. 3011(a) of Pub. L. No. 109-59 amended this section generally, including changing the title from “Capital invest- ment grants and loans” to “Capital investment grants”. See app. D for section before amendment and legislative history. 93 In Qonaar v. Metropolitan Atlanta Rapid Transit Auth., 441 F. Supp. 1168 (N.D. Ga. 1977), the district court held that a circular promulgated by the Office of Management and Budget applied to federal transit grants despite the fact that the federal transit agency had not adopted regulations to im- plement the circular. a new fixed guideway system or extension to an ex- isting fixed guideway system. (b) GENERAL AUTHORITY.—The Secretary may make grants under this section to assist State and local gov- ernmental authorities94 in financing— (1) new fixed guideway capital projects under subsections (d) and (e), including the acquisition of real property, the initial acquisition of rolling stock for the systems, the acquisition of rights-of-way, and relocation, for fixed guideway corridor devel- opment for projects in the advanced stages of alter- natives analysis or preliminary engineering; (2) capital projects to modernize existing fixed guideway systems; (3) capital projects to replace, rehabilitate, and purchase buses and related equipment and to con- struct bus-related facilities, including programs of bus and bus-related projects for assistance to subrecipients that are public agencies, private companies engaged in public transportation, or pri- vate nonprofit organizations; and (4) the development of corridors to support new fixed guideway capital projects under subsections 94 Three district court cases and one appellate court case have held that until the federal transit agency makes a final decision on a grant application, there is no final agency action; the dispute is not ripe for adjudication; and the court lacks jurisdiction. Association of Community Org. for Reform Now v. Southeastern Pa. Transp. Auth., 462 F. Supp. 879 (E.D. Pa. 1978), aff’d w/out op. 605 F.2d 1194 (3d Cir. 1979); Hudson v. Washington Metro. Area Transit Auth., Civil No. 75-0360 (D.D.C. memorandum opinion filed July 8, 1976); and Hudson Transit Lines v. Brinegar, Civil No. 74-648 (D.N.J. opinion filed July 25, 1978). In Friedman Brothers Investment Co. v. Lewis, 676 F.2d 1317 (9th Cir. 1982), the Court of Appeals held that where the federal transit agency had issued an environ- mental categorical exclusion, it had taken enough steps to make the case ripe for judicial review. In McDonald v. Stockton Metro. Transit Dist., 36 Cal. App. 3d 436, III Cal. Rptr. 637 (1974), where a transit district had contracted, inter alia, to install bus stop shelters as part of a capital grant project, it was held that where the district had refused to install such shelters as part of the completed project, the Department of Transportation has authority under the Urban Mass Transportation Act (UMT) of 1964 to either with- hold further financial assistance, or to bring suit for damages or for specific performance to enforce the grant contract. In AM General Corp. v. Department of Transp., 433 F. Supp. 1166 (D.D.C. 1977), the court held that the exclusionary and discriminatory specification language of this section did not prohibit the specification of a product improvement simply because one or more competitors chose not to offer such an improvement, but that the statute did prohibit specifications adopted for the purpose of excluding a competitor from bidding without regard to the merits of the product involved. In the case of Pullman, Inc. v. Adams, No. 77-1686 (D.D.C. memorandum opinion filed June 14, 1978), the court held that prohibition against utilizing exclusionary or discriminatory specifications did not evince an intention to protect a disap- pointed bidder who claimed to be the lowest responsive and responsible bidder on a solicitation offered by a grantee under § 3. The bidder was therefore denied standing to sue.

31 (d) and (e), including protecting rights-of-way through acquisition, construction of dedicated bus and high occupancy vehicle lanes and park and ride lots, and other nonvehicular capital improvements that the Secretary may decide would result in in- creased public transportation usage in the corridor. (c) GRANT REQUIREMENTS.— (1) IN GENERAL.—The Secretary may not approve a grant for a project under this section unless the Secretary determines that— (A) the project is part of an approved trans- portation plan and program of projects re- quired under sections 5303, 5304, and 5306; and (B) the applicant has, or will have— (i) the legal, financial, and technical ca- pacity to carry out the project,95 including safety and security aspects of the project; (ii) satisfactory continuing control over the use of the equipment or facilities;96 and (iii) the capability and willingness to maintain the equipment or facilities. (2) CERTIFICATION.—An applicant that has sub- mitted the certifications required under subpara- graphs (A), (B), (C), and (H) of section 5307(d)(1) shall be deemed to have provided sufficient infor- mation upon which the Secretary may make the de- terminations required under this subsection. (3) GRANTEE REQUIREMENTS.—The Secretary shall require that any grant awarded under this section to a recipient be subject to all terms, conditions, re- quirements, and provisions that the Secretary de- termines to be necessary or appropriate for the purposes of this section, including requirements for the disposition of net increases in the value of real property resulting from the project assisted under this section. (d) MAJOR CAPITAL INVESTMENT GRANTS OF $75,000,000 OR MORE.— (1) FULL FUNDING GRANT AGREEMENT.— (A) IN GENERAL.—A major new fixed guide- way capital project shall be carried out through a full funding grant agreement. (B) CRITERIA.—The Secretary shall enter into a full funding grant agreement, based on the evaluations and ratings required under this 95 Based upon documents in the record, two district courts have upheld the Secretary's finding of legal and technical ca- pacity as not arbitrary, capricious, or an abuse of discretion. Parker v. Adams, Civil No. 78-652 (W.D.N.Y. memorandum opinion filed Nov. 15, 1978); Phila. Council of Neighborhood Org. v. Coleman, 437 F. Supp. 1341 (E.D. Pa. 1977), aff'd w/out op., 578 F.2d. 1375 (3d Cir. 1978). 96 The purpose of this provision is to assure that the project will become, and will remain, operational. Phila. Council of Neighborhood Org. v. Coleman, 437 F. Supp. 1341, 1355 (E.D. Pa. 1977) aff'd w/out op., 578 F.2d 1375 (3d Cir. 1978). Based on material in the record, the Secretary's finding of satisfactory continuing control over the project was held not to be arbitrary, capricious, or an abuse of discretion. Id. at 1356. subsection, with each grantee receiving assis- tance for a major new fixed guideway capital project that— (i) is authorized for final design and con- struction; and (ii) has been rated as medium, medium- high, or high, in accordance with para- graph (5)(B). (2) APPROVAL OF GRANTS.—The Secretary may approve a grant under this section for a major new fixed guideway capital project only if the Secretary, based upon evaluations and considerations set forth in paragraph (3), determines that the project is— (A) based on the results of an alternatives analysis and preliminary engineering; (B) justified based on a comprehensive re- view of its mobility improvements, environ- mental benefits, cost effectiveness, operating efficiencies, economic development effects, and public transportation supportive land use poli- cies and future patterns; and (C) supported by an acceptable degree of lo- cal financial commitment (including evidence of stable and dependable financing sources) to construct, maintain, and operate the system or extension, and maintain and operate the entire public transportation system without requiring a reduction in existing public transportation services or level of service to operate the pro- posed project. (3) EVALUATION OF PROJECT JUSTIFICATION.—In making the determinations under paragraph (2)(B) for a major capital investment grant, the Secretary shall analyze, evaluate, and consider— (A) the results of the alternatives analysis and preliminary engineering for the proposed project; (B) the reliability of the forecasting methods used to estimate costs and utilization made by the recipient and the contractors to the recipi- ent; (C) the direct and indirect costs of relevant alternatives; (D) factors such as— (i) congestion relief; (ii) improved mobility; (iii) air pollution; (iv) noise pollution; (v) energy consumption; and (vi) all associated ancillary and mitiga- tion costs necessary to carry out each al- ternative analyzed; (E) reductions in local infrastructure costs and other benefits achieved through compact land use development, such as positive impacts on the capacity, utilization, or longevity of other surface transportation assets and facili- ties; (F) the cost of suburban sprawl;

32 (G) the degree to which the project increases the mobility of the public transportation de- pendent population or promotes economic de- velopment; (H) population density and current transit ridership in the transportation corridor; (I) the technical capability of the grant re- cipient to construct the project; (J) any adjustment to the project justification necessary to reflect differences in local land, construction, and operating costs; and (K) other factors that the Secretary deter- mines to be appropriate to carry out this sub- section. (4) EVALUATION OF LOCAL FINANCIAL COMMITMENT.— (A) IN GENERAL.—In evaluating a project un- der paragraph (2)(C), the Secretary shall re- quire that— (i) the proposed project plan provides for the availability of contingency amounts that the Secretary determines to be rea- sonable to cover unanticipated cost in- creases; (ii) each proposed local source of capital and operating financing is stable, reliable, and available within the proposed project timetable; and (iii) local resources are available to re- capitalize and operate the overall proposed public transportation system, including es- sential feeder bus and other services nec- essary to achieve the projected ridership levels without requiring a reduction in ex- isting public transportation services or level of service to operate the proposed pro- ject. (B) EVALUATION CRITERIA.—In assessing the stability, reliability, and availability of pro- posed sources of local financing under para- graph (2)(C), the Secretary shall consider— (i) the reliability of the forecasting methods used to estimate costs and utiliza- tion made by the recipient and the contrac- tors to the recipient; (ii) existing grant commitments; (iii) the degree to which financing sources are dedicated to the proposed pur- poses; (iv) any debt obligation that exists, or is proposed by the recipient, for the proposed project or other public transportation pur- pose; and (v) the extent to which the project has a local financial commitment that exceeds the required non- Federal share of the cost of the project. (C) CONSIDERATION OF FISCAL CAPACITY OF STATE AND LOCAL GOVERNMENTS.—If the Secre- tary gives priority to financing projects under this subsection that include more than the non- Federal share required under subsection (h), the Secretary shall give equal consideration to differences in the fiscal capacity of State and local governments. (5) PROJECT ADVANCEMENT AND RATINGS.— (A) PROJECT ADVANCEMENT.—A proposed pro- ject under this subsection shall not advance from alternatives analysis to preliminary engi- neering or from preliminary engineering to fi- nal design and construction unless the Secre- tary determines that the project meets the requirements of this section and there is a rea- sonable likelihood that the project will continue to meet such requirements. (B) RATINGS.—In making a determination under subparagraph (A), the Secretary shall evaluate and rate the project on a 5-point scale (high, medium-high, medium, medium-low, or low) based on the results of the alternatives analysis, the project justification criteria, and the degree of local financial commitment, as required under this subsection. In rating the projects, the Secretary shall provide, in addi- tion to the overall project rating, individual ratings for each of the criteria established by regulation. (6) POLICY GUIDANCE.— (A) PUBLICATION.—The Secretary shall pub- lish policy guidance regarding the new fixed guideway capital project review and evaluation process and criteria— (i) not later than 120 days after the date of enactment of the Federal Public Trans- portation Act of 2005; and (ii) each time significant changes are made by the Secretary to the process and criteria, but not less frequently than once every 2 years. (B) PUBLIC COMMENT AND RESPONSE.—The Secretary shall— (i) invite public comment to the policy guidance published under subparagraph (A); and (ii) publish a response to the comments received under clause (i). (e) CAPITAL INVESTMENT GRANTS LESS THAN $75,000,000.— (1) IN GENERAL.— (A) APPLICABILITY OF REQUIREMENTS.—Except as provided by subparagraph (B), a new fixed guideway capital project shall be subject to the requirements of this subsection if the Federal assistance provided or to be provided under this section for the project is less than $75,000,000 and the total estimated net capital cost of the project is less than $250,000,000. (B) PROJECTS RECEIVING LESS THAN $25,000,000 IN FEDERAL ASSISTANCE.—If the as- sistance provided under this section with re-

33 spect to a new fixed guideway capital project is less than $25,000,000, the requirements of this subsection shall not apply to the project until such date as the final regulation to be issued under paragraph (9) takes effect. (2) SELECTION CRITERIA.—The Secretary may pro- vide Federal assistance under this subsection with respect to a proposed project only if the Secretary finds that the project is— (A) based on the results of planning and al- ternatives analysis; (B) justified based on a review of its public transportation supportive land use policies, cost effectiveness, and effect on local economic development; and (C) supported by an acceptable degree of lo- cal financial commitment. (3) PLANNING AND ALTERNATIVES.—In evaluating a project under paragraph (2)(A), the Secretary shall analyze and consider the results of planning and alternatives analysis for the project. (4) PROJECT JUSTIFICATION.—For purposes of making the finding under paragraph (2)(B), the Secretary shall— (A) determine the degree to which the project is consistent with local land use policies and is likely to achieve local developmental goals; (B) determine the cost effectiveness of the project at the time of the initiation of revenue service; (C) determine the degree to which the project will have a positive effect on local economic de- velopment; (D) consider the reliability of the forecasting methods used to estimate costs and ridership associated with the project; and (E) consider other factors that the Secretary determines appropriate to carry out this sub- section. (5) LOCAL FINANCIAL COMMITMENT.— (A) IN GENERAL.—For purposes of paragraph (2)(C), the Secretary shall require that each proposed local source of capital and operating financing is stable, reliable, and available within the proposed project timetable. (B) CONSIDERATION OF FISCAL CAPACITY OF STATE AND LOCAL GOVERNMENTS.—If the Secre- tary gives priority to financing projects under this subsection that include more than the non- Federal share required under subsection (h), the Secretary shall give equal consideration to differences in the fiscal capacity of State and local governments. (6) ADVANCEMENT OF PROJECT TO DEVELOPMENT AND CONSTRUCTION.— (A) GENERAL RULE.—A proposed project un- der this subsection may advance from planning and alternatives analysis to project develop- ment and construction only if the Secretary finds that the project meets the requirements of this subsection and there is a reasonable likelihood that the project will continue to meet such requirements. (B) EVALUATION.—In making the findings under subparagraph (A), the Secretary shall evaluate and rate the project as high, medium- high, medium, medium-low, or low based on the results of the analysis of the project justifi- cation criteria and the degree of local financial commitment, as required by this subsection. (7) CONTENTS OF PROJECT CONSTRUCTION GRANT AGREEMENT.—A project construction grant agree- ment under this subsection shall specify the scope of the project to be constructed, the estimated net project cost of the project, the schedule under which the project shall be constructed, the maximum amount of funding to be obtained under this sub- section, the proposed schedule for obligation of fu- ture Federal grants, and the sources of funding from other than the Government. The agreement may include a commitment on the part of the Sec- retary to provide funding for the project in future fiscal years. (8) LIMITATION ON ENTRY INTO CONSTRUCTION GRANT AGREEMENT.—The Secretary may enter into a project construction grant agreement for a project under this subsection only if the project is author- ized for construction and has been rated as high, medium-high, or medium under this subsection. (9) REGULATIONS.—Not later than 240 days after the date of enactment of the Federal Public Trans- portation Act of 2005, the Secretary shall issue regulations establishing an evaluation and rating process for proposed projects under this subsection that is based on the results of project justification and local financial commitment, as required under this subsection. (10) FIXED GUIDEWAY CAPITAL PROJECT.—In this subsection, the term “fixed guideway capital pro- ject” includes a corridor-based bus capital project if— (A) a substantial portion of the project oper- ates in a separate right-of-way dedicated for public transit use during peak hour operations; or (B) the project represents a substantial in- vestment in a defined corridor as demonstrated by features such as park-and-ride lots, transit stations, bus arrival and departure signage, in- telligent transportation systems technology, traffic signal priority, off-board fare collection, advanced bus technology, and other features that support the long-term corridor invest- ment. (11) IMPACT REPORT.— (A) IN GENERAL.—Not later than 120 days af- ter the date of enactment of the Federal Public Transportation Act of 2005, the Federal Tran- sit Administration shall submit to the Commit- tee on Banking, Housing, and Urban Affairs of

34 the Senate and the Committee on Transporta- tion and Infrastructure of the House of Repre- sentatives a report on the methodology to be used in evaluating the land use and economic development impacts of non-fixed guideway or partial fixed guideway projects. (B) CONTENTS.—The report submitted under subparagraph (A) shall address any qualitative and quantitative differences between fixed guideway and non-fixed guideway projects with respect to land use and economic development impacts. (f) PREVIOUSLY ISSUED LETTER OF INTENT OR FULL FUNDING GRANT AGREEMENT.—Subsections (d) and (e) do not apply to projects for which the Secretary has issued a letter of intent or entered into a full funding grant agreement before the date of enactment of the Federal Public Transportation Act of 2005. Subsection (e) also does not apply to projects for which the Secretary has received an application for final design before such date of enactment. (g) LETTERS OF INTENT, FULL FUNDING GRANT AGREEMENTS, AND EARLY SYSTEMS WORK AGREEMENTS.— (1) LETTERS OF INTENT.— (A) AMOUNTS INTENDED TO BE OBLIGATED.— The Secretary may issue a letter of intent to an applicant announcing an intention to obligate, for a capital project under this section, an amount from future available budget authority specified in law that is not more than the amount stipulated as the financial participa- tion of the Secretary in the project. When a let- ter is issued for fixed guideway projects, the amount shall be sufficient to complete at least an operable segment. (B) TREATMENT.—The issuance of a letter under subparagraph (A) is deemed not to be an obligation under sections 1108(c), 1108(d), 1501, and 1502(a) of title 31 or an administra- tive commitment. (2) FULL FUNDING GRANT AGREEMENTS.— (A) TERMS.—The Secretary may make a full funding grant agreement with an applicant. The agreement shall— (i) establish the terms of participation by the Government in a project under this section; (ii) establish the maximum amount of Government financial assistance for the project; (iii) cover the period of time for complet- ing the project, including a period extend- ing beyond the period of an authorization; and (iv) make timely and efficient manage- ment of the project easier according to the law of the United States. (B) SPECIAL FINANCIAL RULES.— (i) IN GENERAL.—A full funding grant agreement under this paragraph obligates an amount of available budget authority specified in law and may include a com- mitment, contingent on amounts to be specified in law in advance for commit- ments under this paragraph, to obligate an additional amount from future available budget authority specified in law. (ii) STATEMENT OF CONTINGENT COMMITMENT.—The agreement shall state that the contingent commitment is not an obligation of the Government. (iii) INTEREST AND OTHER FINANCING COSTS.—Interest and other financing costs of efficiently carrying out a part of the pro- ject within a reasonable time are a cost of carrying out the project under a full fund- ing 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 bor- rowing. The applicant shall certify, in a way satisfactory to the Secretary, that the applicant has shown reasonable diligence in seeking the most favorable financing terms. (iv) COMPLETION OF OPERABLE SEGMENT.—The amount stipulated in an agreement under this paragraph for a fixed guideway project shall be sufficient to complete at least an operable segment. (C) BEFORE AND AFTER STUDY.— (i) IN GENERAL.—A full funding grant agreement under this paragraph shall re- quire the applicant to conduct a study that— (I) describes and analyzes the im- pacts of the new fixed guideway capi- tal project on transit services and transit ridership; (II) evaluates the consistency of predicted and actual project characteristics and performance; and (III) identifies sources of differences between predicted and actual out- comes. (ii) INFORMATION COLLECTION AND ANALYSIS PLAN.— (I) SUBMISSION OF PLAN.—Applicants seeking an agreement under this paragraph shall submit a complete plan for the collection and analysis of information to identify the impacts of the new fixed guideway capital project and the accuracy of the forecasts pre- pared during the development of the project. Preparation of this plan shall be included in the full funding grant agreement as an eligible activity.

35 (II) CONTENTS OF PLAN.—The plan submitted under subclause (I) shall provide for— (aa) the collection of data on the current transit system regarding transit service levels and rider- ship patterns, including origins and destinations, access modes, trip purposes, and rider character- istics; (bb) documentation of the pre- dicted scope, service levels, capital costs, operating costs, and rider- ship of the project; (cc) collection of data on the transit system 2 years after the opening of the new fixed guideway capital project, including analo- gous information on transit ser- vice levels and ridership patterns and information on the as-built scope and capital costs of the pro- ject; and (dd) analysis of the consistency of predicted project characteristics with the after data. (D) COLLECTION OF DATA ON CURRENT SYSTEM.—To be eligible for a full funding grant agreement under this paragraph, recipients shall have collected data on the current sys- tem, according to the plan required, before the beginning of construction of the proposed new start project. Collection of this data shall be in- cluded in the full funding grant agreement as an eligible activity. (3) EARLY SYSTEM WORK AGREEMENTS.— (A) CONDITIONS.—The Secretary may make an early systems work agreement with an ap- plicant if a record of decision under the Na- tional Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) has been issued on the pro- ject and the Secretary finds there is reason to believe— (i) a full funding grant agreement for the project will be made; and (ii) the terms of the work agreement will promote ultimate completion of the project more rapidly and at less cost. (B) CONTENTS.— (i) IN GENERAL.—A work agreement un- der this paragraph obligates an amount of available budget authority specified in law and shall provide for reimbursement of preliminary costs of carrying out the pro- ject, including land acquisition, timely pro- curement of system elements for which specifications are decided, and other activi- ties the Secretary decides are appropriate to make efficient, long-term project man- agement easier. (ii) PERIOD COVERED.—A work agreement under this paragraph shall cover the pe- riod of time the Secretary considers appro- priate. The period may extend beyond the period of current authorization. (iii) INTEREST AND OTHER FINANCING COSTS.— Interest and other financing costs of efficiently carrying out the work agree- ment within a reasonable time are a cost of carrying out the 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. The applicant shall cer- tify, in a way satisfactory to the Secretary, that the applicant has shown reasonable diligence in seeking the most favorable fi- nancing terms. (iv) FAILURE TO CARRY OUT PROJECT.—If an applicant does not carry out the project for reasons within the control of the appli- cant, the applicant shall repay all Gov- ernment payments made under the work agreement plus reasonable interest and penalty charges the Secretary establishes in the agreement. (4) LIMITATION ON AMOUNTS.— (A) MAJOR CAPITAL INVESTMENT GRANTS CONTINGENT COMMITMENT AUTHORITY.—The to- tal estimated amount of future obligations of the Government and contingent commitments to incur obligations covered by all outstanding letters of intent, full funding grant agreements, and early systems work agreements under this subsection for major new fixed guideway capi- tal projects may be not more than the greater of the amount authorized under sections 5338(a)(3) and 5338(c) for such projects or an amount equivalent to the last 3 fiscal years of funding allocated under subsections (m)(1)(A) and (m)(2)(A)(ii) for such projects, less an amount the Secretary reasonably estimates is necessary for grants under this section for those of such projects that are not covered by a letter or agreement. The total amount covered by new letters and contingent commitments in- cluded in full funding grant agreements and early systems work agreements for such pro- jects may be not more than a limitation speci- fied in law. (B) OTHER CONTINGENT COMMITMENT AUTHORITY.— The total estimated amount of future obligations of the Government and con- tingent commitments to incur obligations cov- ered by all project construction grant agree- ments and early system work agreements under this subsection for small capital projects described in subsection (e) may be not more than the greater of the amount allocated under subsection (m)(2)(A)(i) for such projects or an

36 amount equivalent to the last fiscal year of funding allocated under such subsection for such projects, less an amount the Secretary reasonably estimates is necessary for grants under this section for those of such projects that are not covered by an agreement. The to- tal amount covered by new contingent com- mitments included in project construction grant agreements and early systems work agreements for such projects may be not more than a limitation specified in law. (C) INCLUSION OF CERTAIN COMMITMENTS.— Future obligations of the Government and con- tingent commitments made against the contin- gent commitment authority under section 3032(g)(2) of the Intermodal Surface Transpor- tation Efficiency Act of 1991 (106 Stat. 2125) for the San Francisco BART to the Airport pro- ject for fiscal years 2002, 2003, 2004, 2005, and 2006 shall be charged against section 3032(g)(2) of that Act. (D) APPROPRIATION REQUIRED.—An obligation may be made under this subsection only when amounts are appropriated for the obligation. (5) NOTIFICATION OF CONGRESS.—At least 60 days before issuing a letter of intent or entering into a full funding grant agreement or project construc- tion grant agreement under this section, the Secre- tary shall notify, in writing, the Committees on Transportation and Infrastructure and Appropria- tions of the House of Representatives and the Committees on Banking, Housing, and Urban Af- fairs and Appropriations of the Senate of the pro- posed letter or agreement. The Secretary shall in- clude with the notification a copy of the proposed letter or agreement as well as the evaluations and ratings for the project. (h) GOVERNMENT’S SHARE OF NET PROJECT COST.— (1) IN GENERAL.—Based on engineering studies, studies of economic feasibility, and information on the expected use of equipment or facilities, the Sec- retary shall estimate the net project cost. A grant for the project shall be for 80 percent of the net capital project cost, unless the grant recipient re- quests a lower grant percentage. (2) ADJUSTMENT FOR COMPLETION UNDER BUDGET.—The Secretary may adjust the final net project cost of a new fixed guideway capital project evaluated under subsections (d) and (e) to include the cost of eligible activities not included in the originally defined project if the Secretary deter- mines that the originally defined project has been completed at a cost that is significantly below the original estimate. (3) MAXIMUM GOVERNMENT SHARE.—The Secretary may provide a higher grant percentage than re- quested by the grant recipient if— (A) the Secretary determines that the net project cost of the project is not more than 10 percent higher than the net project cost esti- mated at the time the project was approved for advancement into preliminary engineering; and (B) the ridership estimated for the project is not less than 90 percent of the ridership esti- mated for the project at the time the project was approved for advancement into prelimi- nary engineering. (4) REMAINDER OF NET PROJECT COST.—The re- mainder of net project costs shall be provided from an undistributed cash surplus, a replacement or depreciation cash fund or reserve, or new capital. (5) LIMITATION ON STATUTORY CONSTRUCTION.— Nothing in this section, including paragraph (1) and subsections (d)(4)(B)(v) and (e)(5), shall be con- strued as authorizing the Secretary to require a non-Federal financial commitment for a project that is more than 20 percent of the net capital pro- ject cost. (6) SPECIAL RULE FOR ROLLING STOCK COSTS.—In addition to amounts allowed pursuant to paragraph (1), a planned extension to a fixed guideway system may include the cost of rolling stock previously purchased if the applicant satisfies the Secretary that only amounts other than amounts of the Gov- ernment were used and that the purchase was made for use on the extension. A refund or reduc- tion of the remainder may be made only if a refund of a proportional amount of the grant of the Gov- ernment is made at the same time. (7) LIMITATION ON APPLICABILITY.—This subsec- tion does not apply to projects for which the Secre- tary has entered into a full funding grant agree- ment before the date of enactment of the Federal Public Transportation Act of 2005. (i) UNDERTAKING PROJECTS IN ADVANCE.— (1) IN GENERAL.—The Secretary may pay the Government’s share of the net capital project cost to a State or local governmental authority that car- ries out any part of a project described in this sec- tion without the aid of amounts of the Government and according to all applicable procedures and re- quirements if— (A) the State or local governmental authority applies for the payment; (B) the Secretary approves the payment; and (C) before carrying out the part of the pro- ject, the Secretary approves the plans and specifications for the part in the same way as other projects under this section. (2) FINANCING COSTS.— (A) IN GENERAL.—The cost of carrying out part of a project includes the amount of inter- est earned and payable on bonds issued by the State or local governmental authority to the extent proceeds of the bonds are expended in carrying out the part. (B) LIMITATION ON AMOUNT INTEREST.—The amount of interest under this paragraph may not be more than the most favorable interest

37 terms reasonably available for the project at the time of borrowing. (C) CERTIFICATION.—The applicant shall cer- tify, in a manner satisfactory to the Secretary, that the applicant has shown reasonable dili- gence in seeking the most favorable financial terms. (j) AVAILABILITY OF AMOUNTS.— (1) IN GENERAL.—An amount made available or appropriated under section 5338(a)(3)(C)(iii), 5338(a)(3)(C)(iv), 5338(b)(2)(E), or 5338(c) for re- placement, rehabilitation, and purchase of buses and related equipment and construction of bus- related facilities or for new fixed guideway capital projects shall remain available for 3 fiscal years, including the fiscal year in which the amount is made available or appropriated. Any of such amounts that are unobligated at the end of the 3- fiscal-year period may be used by the Secretary for any purpose under this section. (2) USE OF DEOBLIGATED AMOUNTS.—An amount available under this section that is deobligated may be used for any purpose under this section. (k) REPORTS ON NEW STARTS.— (1) ANNUAL REPORT ON FUNDING RECOMMENDATIONS.—Not later than the first Mon- day 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 Banking, Housing, and Urban Affairs and Appropriations of the Senate a report that includes— (A) a proposal of allocations of amounts to be available to finance grants for new fixed guideway capital projects among applicants for these amounts; (B) evaluations and ratings, as required un- der subsections (d) and (e), for each such pro- ject that is authorized by the Federal Public Transportation Act of 2005; and (C) recommendations of such projects for funding based on the evaluations and ratings and on existing commitments and anticipated funding levels for the next 3 fiscal years based on information currently available to the Sec- retary. (2) ANNUAL GAO REVIEW.—The Comptroller Gen- eral shall— (A) conduct an annual review of— (i) the processes and procedures for evaluating, rating, and recommending new fixed guideway capital projects; and (ii) the Secretary’s implementation of such processes and procedures; and (B) report to Congress on the results of such review by May 31 of each year. (l) OTHER REPORTS.— (1) BEFORE AND AFTER STUDY REPORTS.—Not later than the first Monday of August of each year, the Secretary shall submit to the committees referred to in subsection (k)(1) a report containing a sum- mary of the results of the studies conducted under subsection (g)(2)(C). (2) CONTRACTOR PERFORMANCE ASSESSMENT REPORT.— (A) IN GENERAL.—Not later than 180 days af- ter the enactment of the Federal Public Trans- portation Act of 2005, and each year thereafter, the Secretary shall submit to the committees referred to in subsection (k)(1) a report analyz- ing the consistency and accuracy of cost and ridership estimates made by each contractor to public transportation agencies developing new fixed guideway capital projects. (B) CONTENTS.—The report submitted under subparagraph (A) shall compare the cost and ridership estimates made at the time projects are approved for entrance into preliminary en- gineering with— (i) estimates made at the time projects are approved for entrance into final design; (ii) costs and ridership when the project commences revenue operation; and (iii) costs and ridership when the project has been in operation for 2 years. (C) CONSIDERATION.—In making comparisons under subparagraph (B), the Secretary shall consider factors having an impact on costs and ridership not under the control of the contrac- tor. The Secretary shall also consider the role taken by each contractor in the development of the project. (3) CONTRACTOR PERFORMANCE INCENTIVE REPORT.—Not later than 180 days after the enact- ment of the Federal Public Transportation Act of 2005, the Secretary shall submit to the committees referred to in subsection (k)(1) a report on the suit- ability of allowing contractors to public transporta- tion agencies that undertake new fixed guideway capital projects under this section to receive per- formance incentive awards if a project is completed for less than the original estimated cost. (m) ALLOCATING AMOUNTS.— (1) FISCAL YEAR 2005.—Of the amounts made available or appropriated for fiscal year 2005 under section 5338(a)(3)— (A) $1,437,829,600 shall be allocated for new fixed capital projects under subsection (d); (B) $1,204,684,800 shall be allocated for capi- tal projects for fixed guideway modernization; and (C) $669,600,000 shall be allocated for capi- tal projects for buses and bus-related equip- ment and facilities. (2) FISCAL YEARS 2006 THROUGH 2009.—The amounts made available or appropriated for fiscal years 2006 through 2009 under sections 5338(b) and 5338(c) shall be allocated as follows:

38 (A) MAJOR CAPITAL INVESTMENT GRANTS.—Of the amounts appropriated under section 5338(c)— (i) $200,000,000 for each of fiscal years 2007 through 2009 shall be allocated for projects for new fixed guideway capital projects of less than $75,000,000 in accor- dance with subsection (e); and (ii) the remainder shall be allocated for major new fixed guideway capital projects in accordance with subsection (d). (B) FIXED GUIDEWAY MODERNIZATION.—The amounts made available under section 5338(b)(2)(D) shall be allocated for capital pro- jects for fixed guideway modernization. (C) BUSES AND BUS-RELATED EQUIPMENT AND FACILITIES.—The amounts made available un- der section 5338(b)(2)(E) shall be allocated for capital projects for buses and bus-related equipment and facilities. (3) FIXED GUIDEWAY MODERNIZATION.—The amounts made available for fixed guideway mod- ernization under section 5338(b)(2)(D) for fiscal year 2006 and each fiscal year thereafter shall be allocated in accordance with section 5337. (4) PRELIMINARY ENGINEERING AND ALTERNATIVES ANALYSIS.—Not more that 8 percent of the alloca- tion described in paragraph (1)(A) may be expended on alternatives analysis and preliminary engineer- ing. (5) PRELIMINARY ENGINEERING.—Not more than 8 percent of the allocation described in paragraph (2)(A) may be expended on preliminary engineer- ing. (6) FUNDING FOR FERRY BOATS.—Of the amounts described in paragraphs (1)(A) and (2)(A)— (A) $10,400,000 shall be available in fiscal year 2005 for capital projects in Alaska and Hawaii for new fixed guideway systems and extension projects utilizing ferry boats, ferry boat terminals, or approaches to ferry boat terminals; (B) $15,000,000 shall be available in each of fiscal years 2006 through 2009 for capital pro- jects in Alaska and Hawaii for new fixed guide- way ferry systems and extension projects util- izing ferry boats, ferry boat terminals, or approaches to ferry boat terminals; and (C) $5,000,000 shall be available for each of fiscal years 2006 though 2009 for payments to the Denali Commission under the terms of sec- tion 307(e) of the Denali Commission Act of 1998 (42 U.S.C. 3121 note) for docks, water- front development projects, and related trans- portation infrastructure. (7) BUS AND BUS FACILITY GRANTS.—The amounts made available under paragraphs (1)(C) and (2)(C) shall be allocated as follows: (A) FERRY BOAT SYSTEMS.—$10,000,000 shall be available in each of fiscal years 2006 through 2009 for ferry boats or ferry terminal facilities. Of such funds, the following amounts shall be set aside for each fiscal year: (i) $2,500,000 for the San Francisco Wa- ter Transit Authority. (ii) $2,500,000 for the Massachusetts Bay Transportation Authority Ferry Sys- tem. (iii) $1,000,000 for the Camden, New Jersey Ferry System. (iv) $1,000,000 for the Governor’s Island, New York Ferry System (v) $1,000,000 for the Philadelphia Penn’s Landing Ferry Terminal. (vi) $1,000,000 for the Staten Island Ferry. (vii) $650,000 for the Maine State Ferry Service, Rockland. (viii) $350,000 for the Swans Island, Maine Ferry Service. (B) FUEL CELL BUS PROGRAM.—The following amounts shall be set aside for the national fuel cell bus technology development program un- der section 3039 of the Federal Public Trans- portation Act of 2005: (i) $11,250,000 for fiscal year 2006. (ii) $11,500,000 for fiscal year 2007. (iii) $12,750,000 for fiscal year 2008. (iv) $13,500,000 for fiscal year 2009. (C) PROJECTS NOT IN URBANIZED AREAS.—Not less than 5.5 percent shall be available in each fiscal year for projects that are not in urban- ized areas. (D) INTERMODAL TERMINALS.—Not less than $35,000,000 shall be available in each fiscal year for intermodal terminal projects, includ- ing the intercity bus portion of such projects. (E) BUS TESTING.—$3,000,000 shall be avail- able in each fiscal year for bus testing under section 5318. (8) BUS AND BUS FACILITY GRANT CONDITIONS.—In making grants under paragraphs (1)(C) and (2)(C), the Secretary shall consider the age and condition of buses, bus fleets, related equipment, and bus- related facilities.

39 SECTION 5310.97 FORMULA GRANTS FOR SPECIAL NEEDS OF ELDERLY INDIVIDUALS AND INDIVIDUALS WITH DISABILITIES.98 99 100 101 102 (a) GENERAL AUTHORITY.— 97 Sec. 3012(a) of Pub. L. No. 109-59 amended this section generally, including changing the title from “Formula grants and loans for special needs of elderly individuals and individu- als with disabilities” to “Formula grants for special needs of elderly individuals and individuals with disabilities”. See app. D for section before amendment and legislative history. 98 Other statutes affecting transit services for elderly indi- viduals and individuals with disabilities include § 165(b) of the Federal Aid Highway Act of 1973, infra, pt. II. Reference is also made to sec. 504 of the Rehabilitation Act of 1973, infra part III. 99 In American Pub. Transit Ass’n v. Lewis, 655 F.2d 1272 (D.C. Cir. 1981), the Court of Appeals held that Department of Transportation (DOT) 1979 regulations requiring all federally funded buses and subways to be accessible to handicapped persons went beyond the scope of § 504 of the Rehabilitation Act. The court left open the question of whether then § 16 would permit such a regulation. Several courts have held or implied as valid regulations requiring “special efforts” as an appropriate measure of a transit authority's § 504 obligation. Dopico v. Goldschmidt, 518 F. Supp. 1161 (S.D.N.Y. 1981), rev'd in part, aff'd in part, 687 F.2d 644 (2d Cir. 1982); Lloyd v. Regional Transp. Auth., 548 F.2d 415 (7th Cir. 1977); Lloyd v. Regional Transp. Auth., 548 F. Supp. 575 (N.D. Ill. 1982); United Handicapped Fed’n v. Andre, 558 F.2d 413 (8th Cir. 1977); Mich. Paralyzed Veterans v. Coleman, 545 F. Supp. 245 (E.D. Mich. 1982); Atlantis Community, Inc. v. Adams, 453 F. Supp. 825 (D. Col. 1978); Vanko v. Finley, 440 F. Supp. 656 (N.D. Ohio 1977); Snowden v. Birmingham Jefferson County Transit Auth., 407 F. Supp. 394 (N.D. Ala. 1975), aff'd w/out op., 551 F.2d 862 (5th Cir. 1977), reh’g denied, 554 F.2d 475 (5th Cir. 1977); Lucht v. Bejarano, No. Civ. 81-031-TUC-RMB (D. Ariz. Aug. 14, 1981). DOT's 1981 interim regulations im- plementing this section and 504 were entitled to deference. R.I. Handicapped Action Comm. v. R.I. Public Transit Auth., 718 F.2d 490, 946, M-10 (1st Cir. 1983); See also Disabled in Action of Baltimore v. Bridwell, 593 F. Supp. 1 241 (D. Md. 1984); appeal dis’d w/out op., 820 F.2d 1219 (4th Cir. 1987). 100 Handicapped persons did not have a private right of ac- tion under then § 16. Dopico v. Goldschmidt, supra; Lloyd v. Regional Transp. Auth., supra; and Mich. Paralyzed Veterans v. Coleman, 545 F. Supp. 245 (E.D. Mich. 1982). All of the above cases have either explicitly or implicitly found that handicapped persons have a private right of action under § 504. See also Leary v. Crapsey, 566 F.2d 863 (2d Cir. 1977). 101 Since federal transit legislation imposes more explicit af- firmative burdens than does § 504 [of the Rehabilitation Act], DOT understandably determined that satisfaction of the re- quirements under the federal transit statute would suffice to meet the less well-defined requirements of § 504. R.I. Handi- capped Action Comm. v. R.I. Pub. Transit Auth., supra at 494 n.5 (1st Cir. 1983). 102 DOT regulation that did not require recipient to spend more than 3 percent of annual operating costs to meet service criteria for disabled individuals violated statute requiring Sec- retary to establish minimum service criteria services to dis- abled individuals without cost limitations. ADAPT v. Skinner, (1) GRANTS.—The Secretary may make grants to States and local governmental authorities under this section for public transportation capital pro- jects planned, designed, and carried out to meet the special needs of elderly individuals and individuals with disabilities. (2) SUBRECIPIENTS.—A State that receives a grant under this section may allocate the amounts pro- vided under the grant to— (A) a private nonprofit organization, if the public transportation service provided under paragraph (1) is unavailable, insufficient, or inappropriate; or (B) a governmental authority that— (i) is approved by the State to coordinate services for elderly individuals and indi- viduals with disabilities; or (ii) certifies that there are not any non- profit organizations readily available in the area to provide the services described under paragraph (1). (3) ACQUIRING PUBLIC TRANSPORTATION SERVICES.—A public transportation capital project under this section may include acquisition of public transportation services as an eligible capital ex- pense. (4) ADMINISTRATIVE EXPENSES.—A State or local governmental authority may use not more than 10 percent of the amounts apportioned to the State under this section to administer, plan, and provide technical assistance for a project funded under this section. (b) APPORTIONMENT AND TRANSFERS.— (1) FORMULA.—The Secretary shall apportion amounts made available to carry out this section under a formula the Secretary administers that considers the number of elderly individuals and in- dividuals with disabilities in each State. (2) TRANSFER OF FUNDS.—Any funds apportioned to a State under paragraph (1) may be transferred by the State to the apportionments made under sections 5311(c) and 5336 if such funds are only used for eligible projects selected under this sec- tion. (c) GOVERNMENT’S SHARE OF COSTS.— (1) CAPITAL PROJECTS.— (A) IN GENERAL.—A grant for a capital project under this section shall be for 80 percent of the net capital costs of the project, as determined by the Secretary. (B) EXCEPTION.—A State described in section 120(b) of title 23 shall receive an increased Government share in accordance with the for- mula under that section. supra note 12. Compliance with DOT regulations regarding accessibility of transportation service building to disabled indi- viduals did not release recipients from compliance with other separate requirements related to accessibility. Eastern Para- lyzed Veterans Ass’n of Pa. v. Sykes, 676 F. Supp. 597 (E.D. Pa. 1987).

40 (2) REMAINDER.—The remainder of the net pro- ject costs— (A) may be provided from an undistributed cash surplus, a replacement or depreciation cash fund or reserve, a service agreement with a State or local social service agency or a pri- vate social service organization, or new capital; (B) may be derived from amounts appropri- ated or otherwise made available to a depart- ment or agency of the Government (other than the Department of Transportation) that are eligible to be expended for transportation; and (C) notwithstanding subparagraph (B), may be derived from amounts made available to carry out the Federal lands highway program established by section 204 of title 23. (3) USE OF CERTAIN FUNDS.—For purposes of paragraph (2)(B), the prohibitions on the use of funds for matching requirements under section 403(a)(5)(C)(vii) of the Social Security Act (42 U.S.C. 603(a)(5)(C)(vii)) shall not apply to Federal or State funds to be used for transportation pur- poses. (d) GRANT REQUIREMENTS.— (1) IN GENERAL.—A grant under this section shall be subject to all requirements of a grant under sec- tion 5307 to the extent the Secretary determines appropriate. (2) CERTIFICATION REQUIREMENTS.— (A) FUNDS TRANSFERS.—A grant recipient under this section that transfers funds to a project funded under section 5336 in accor- dance with subsection (b)(2) shall certify that the project for which the funds are requested has been coordinated with private nonprofit providers of services under this section. (B) PROJECT SELECTION AND PLAN DEVELOPMENT.—Beginning in fiscal year 2007, each grant recipient under this section shall certify that— (i) the projects selected were derived from a locally developed, coordinated pub- lic transit-human services transportation plan; and (ii) the plan was developed through a process that included representatives of public, private, and nonprofit transporta- tion and human services providers and participation by the public. (C) ALLOCATIONS TO SUBRECIPIENTS.—Each grant recipient under this section shall certify that allocations of the grant to subrecipients, if any, are distributed on a fair and equitable ba- sis. (e) STATE PROGRAM OF PROJECTS.— (1) IN GENERAL.—Amounts made available to carry out this section may be used for transporta- tion projects to assist in providing transportation services for elderly individuals and individuals with disabilities that are included in a State pro- gram of projects. (2) SUBMISSION AND APPROVAL.—A State shall submit to the Secretary annually for approval a program of projects. The program shall contain an assurance that the program provides for maximum feasible coordination of transportation services as- sisted under this section with transportation ser- vices assisted by other Government sources. (f) LEASING VEHICLES.—Vehicles acquired under this section may be leased to local governmental authorities to improve transportation services designed to meet the special needs of elderly individuals and individuals with disabilities. (g) MEAL DELIVERY FOR HOMEBOUND INDIVIDUALS.— Public transportation service providers receiving assis- tance under this section or section 5311(c) may coordi- nate and assist in regularly providing meal delivery service for homebound individuals if the delivery ser- vice does not conflict with providing public transporta- tion service or reduce service to public transportation passengers. (h) TRANSFERS OF FACILITIES AND EQUIPMENT.—With the consent of the recipient in possession of a facility or equipment acquired with a grant under this section, a State may transfer the facility or equipment to any re- cipient eligible to receive assistance under this chapter if the facility or equipment will continue to be used as required under this section. SECTION 5311.103 FORMULA GRANTS104 FOR OTHER THAN URBANIZED AREAS. (a)105 DEFINITIONS.—As used in this section, the fol- lowing definitions shall apply: (1) RECIPIENT.—The term “recipient” means a State or Indian tribe that receives a Federal transit program grant directly from the Federal Govern- ment. 103 Pub. L. No. 103-272 codified portions of § 18 of the Fed- eral Transit Act to constitute this section; see app. B; omitted text as surplus or obsolete in subsecs. (a), (b), and (c); substi- tuted text for consistency in subsec. (a); and added text for clarity in subsecs. (a) and (b). Sec. 313(a) of Pub. L. No. 95-599 added § 18 to the Federal Transit Act. The prior § 18, which was added by Pub. L. No. 95-187, was repealed by sec. 312(c) of Pub. L. No. 95-599. One court has held that there is no private right of action to enforce § 18 of the federal transit statute and, in the facts of that case, that a private taxi operator had no standing to chal- lenge the federal transit agency’s award of a § 18 grant to a county board of human services. Associated Business of Frank- lin v. Warren, 522 F. Supp. 1015 (S.D. Ohio 1981). 104 Sec. 3014(a)(1) of Pub. L. No. 105-178 substituted “For- mula grants” for “Financial assistance”. 105 Sec. 3013(a) of Pub. L. No. 109-59 generally amended this subsection. Before amendment, subsec. (a) read: “(a) DEFINITION.—In this section, ‘recipient’ includes a State au- thority, a local governmental authority, a nonprofit organiza- tion, and an operator of mass transportation service.”.

41 (2) SUBRECIPIENT.—The term “subrecipient” means a State or local governmental authority, a nonprofit organization, or an operator of public transportation or intercity bus service that receives Federal transit program grant funds indirectly through a recipient. (b)106 GENERAL AUTHORITY.— (1) GRANTS AUTHORIZED.—Except as provided by paragraph (2), the Secretary may award grants un- der this section to recipients located in areas other than urbanized areas for— (A) public transportation capital projects; (B) operating costs of equipment and facili- ties for use in public transportation; and (C) the acquisition of public transportation services, including service agreements with private providers of public transportation ser- vices. (2) STATE PROGRAM.— (A) IN GENERAL.—A project eligible for a grant under this section shall be included in a State program for public transportation service projects, including agreements with private providers of public transportation service. (B) SUBMISSION TO SECRETARY.—Each State shall submit to the Secretary annually the pro- gram described in subparagraph (A). (C) APPROVAL.—The Secretary may not ap- prove the program unless the Secretary deter- mines that— (i) the program provides a fair distribu- tion of amounts in the State, including In- dian reservations; and (ii) the program provides the maximum feasible coordination of public transporta- tion service assisted under this section with transportation service assisted by other Federal sources. (3) RURAL TRANSPORTATION ASSISTANCE PROGRAM.— (A) IN GENERAL.—The Secretary shall carry out a rural transportation assistance program in other than urbanized areas. 106 Sec. 3013(b) of Pub. L. No. 109-59 generally amended this subsection. Before amendment, subsec. (b) read: (b) GENERAL AUTHORITY.—(1) The Secretary of Transporta- tion may make grants for transportation projects that are in- cluded in a State program of mass transportation service pro- jects (including service agreements with private providers of mass transportation service) for areas other than urbanized ar- eas. The program shall be submitted annually to the Secretary. The Secretary may approve the program only if the Secretary finds that the program provides a fair distribution of amounts in the State, including Indian reservations, and the maximum fea- sible coordination of mass transportation service assisted under this section with transportation service assisted by other United States Government sources. Sec. 323 of Pub. L. No. 100-17 added subsec. 18(h) of the Federal Transit Act, the precodification version of this para- graph. (B) GRANTS AND CONTRACTS.—In carrying out this paragraph, the Secretary may use not more than 2 percent of the amount made avail- able to carry out this section to make grants and contracts for transportation research, technical assistance, training, and related sup- port services in other than urbanized areas. (C) PROJECTS OF A NATIONAL SCOPE.—Not more than 15 percent of the amounts available under subparagraph (B) may be used by the Secretary to carry out projects of a national scope, with the remaining balance provided to the States. (4) DATA COLLECTION.—Each recipient under this section shall submit an annual report to the Secre- tary containing information on capital investment, operations, and service provided with funds re- ceived under this section, including— (A) total annual revenue; (B) sources of revenue; (C) total annual operating costs; (D) total annual capital costs; (E) fleet size and type, and related facilities; (F) revenue vehicle miles; and (G) ridership. (c)107 APPORTIONMENTS.— (1) PUBLIC TRANSPORTATION ON INDIAN RESERVATIONS.—Of the amounts made available or appropriated for each fiscal year pursuant to sub- sections (a)(1)(C)(v) and (b)(2)(G) of section 5338, the following amounts shall be apportioned for grants to Indian tribes for any purpose eligible un- der this section, under such terms and conditions as may be established by the Secretary: (A) $8,000,000 for fiscal year 2006. (B) $10,000,000 for fiscal year 2007. (C) $12,000,000 for fiscal year 2008. (D) $15,000,000 for fiscal year 2009. (2) REMAINING AMOUNTS.—Of the amounts made available or appropriated for each fiscal year pur- suant to subsections (a)(1)(C)(v) and (b)(2)(G) of section 5338 that are not apportioned under para- graph (1)— (A) 20 percent shall be apportioned to the States in accordance with paragraph (3); and (B) 80 percent shall be apportioned to the States in accordance with paragraph (4). (3) APPORTIONMENTS BASED ON LAND AREA IN NONURBANIZED AREAS.— (A) IN GENERAL.—Subject to subparagraph (B), each State shall receive an amount that is equal to the amount apportioned under para- graph (2)(A) multiplied by the ratio of the land area in areas other than urbanized areas in that State and divided by the land area in all areas other than urbanized areas in the United 107 Sec. 3013(c) of Pub. L. No. 109-59 generally amended this subsection. See app. D for text of subsec. (c) before amendment and legislative history.

42 States, as shown by the most recent decennial census of population. (B) MAXIMUM APPORTIONMENT.—No State shall receive more than 5 percent of the amount apportioned under this paragraph. (4) APPORTIONMENTS BASED ON POPULATION IN NONURBANIZED AREAS.—Each State shall receive an amount equal to the amount apportioned under paragraph (2)(B) multiplied by the ratio of the population of areas other than urbanized areas in that State divided by the population of all areas other than urbanized areas in the United States, as shown by the most recent decennial census of popu- lation. (d) USE FOR LOCAL TRANSPORTATION SERVICE.108—A State may use an amount apportioned under this sec- tion for a project included in a program under subsec- tion (b) of this section and eligible for assistance under this chapter if the project will provide local transporta- tion service, as defined by the Secretary of Transporta- tion, in an area other than an urbanized area. (e) USE FOR ADMINISTRATION, PLANNING,109 AND TECHNICAL ASSISTANCE.—The Secretary110 of Transpor- tation may allow a State to use not more than 15 per- cent of the amount apportioned under this section to administer this section and provide technical assistance to a subrecipient,111 including project planning, program and management development, coordination of public transportation programs, and research the State con- siders appropriate to promote effective delivery of pub- lic transportation to an area other than an urbanized area. (f) INTERCITY BUS TRANSPORTATION.112—(1) IN GENERAL.—A State113 shall expend at least114 15 percent of the amount made available in each fiscal year to 108 Subsecs. (b) and (c) of § 18 of the Federal Transit Act do not create rights enforceable in private litigation. Rapid Tran- sit Advocates v. Southern Cal. Rapid Transit District, 752 F.2d 373 (1985). 109 Sec. 3013(d)(1) of Pub. L. No. 109-59 inserted “, PLANNING.”. 110 Sec. 3013(d)(2) of Pub. L. No. 109-59 struck “(1) The Sec- retary” and inserted “The Secretary”. 111 Sec. 3013(d)(3) of Pub. L. No. 109-59 struck para. (2), which read: “(2) Except as provided in this section, a State carrying out a program of operating assistance under this sec- tion may not limit the level or extent of use of the Government grant for the payment of operating expenses.”. Sec. 322 of Pub. L. No. 100-17 added the precodification version of this para- graph. Sec. 3013(d)(4) of Pub. L. No. 109-59 struck “recipient” and inserted “subrecipient”. 112 Sec. 3023 of Pub. L. No. 102-240 added the precodifica- tion version of this subsection. 113 Sec. 3013(e)(1) of Pub. L. No. 109-59 struck “(1) A State” and inserted the following: “(1) IN GENERAL.—A State”; striking “after September 30, 1993,” following “fiscal year”; and re- aligned subparas. (A) through (D). 114 Sec. 3014(a)(2) of Pub. L. No. 105-178 struck “10 percent of the amount made available in the fiscal year ending Sep- tember 30, 1993, and”. carry out a program to develop and support intercity bus transportation. Eligible activities under the pro- gram include— (A) planning and marketing for intercity bus transportation; (B) capital grants for intercity bus shelters; (C) joint-use stops and depots; (D) operating grants through purchase-of- service agreements, user-side subsidies, and demonstration projects; and (E) coordinating rural connections between small public transportation operations and intercity bus carriers. (2) CERTIFICATION.—A State115 does not have to comply with paragraph (1) of this subsection in a fiscal year in which the chief executive officer of the State certifies to the Secretary, after consultation with affected intercity bus service providers, that the intercity bus service needs of the State are be- ing met adequately. (g)116 GOVERNMENT'S SHARE OF COSTS.— (1) CAPITAL PROJECTS.— (A) In general.—Except as provided by sub- paragraph (B), a grant awarded under this sec- tion for any purpose other than operating as- sistance shall be for 80 percent of the net capital costs of the project, as determined by the Secretary. (B) Exception.—A State described in section 120(b) of title 23 shall receive a Government share of the net capital costs in accordance with the formula under that section. (2) OPERATING ASSISTANCE.— (A) IN GENERAL.—Except as provided by sub- paragraph (B), a grant made under this section for operating assistance may not exceed 50 percent of the net operating costs of the project, as determined by the Secretary. (B) EXCEPTION.—A State described in section 120(b) of title 23 shall receive a Government share of the net operating costs equal to 62.5 percent of the Government share provided for under paragraph (1)(B). (3) REMAINDER.—The remainder of net project costs— (A) may be provided from an undistributed cash surplus, a replacement or depreciation cash fund or reserve, a service agreement with a State or local social service agency or a pri- vate social service organization, or new capital; (B) may be derived from amounts appropri- ated or otherwise made available to a depart- 115 Sec. 3013(e)(2) of Pub. L. No. 109-59 struck “(2) A State” and inserted “(2) CERTIFICATION.—A State”; and struck “Secre- tary of Transportation” and inserted “Secretary, after consulta- tion with affected intercity bus service providers,”. 116 Sec. 3013(f) of Pub. L. No. 109-59 generally amended this subsection. See app. D for text of this subsection before amendment and legislative history.

43 ment or agency of the Government (other than the Department of Transportation) that are eligible to be expended for transportation; and (C) notwithstanding subparagraph (B), may be derived from amounts made available to carry out the Federal lands highway program established by section 204 of title 23. (4) USE OF CERTAIN FUNDS.—For purposes of paragraph (3)(B), the prohibitions on the use of funds for matching requirements under section 403(a)(5)(C)(vii) of the Social Security Act (42 U.S.C. 603(a)(5)(C)(vii)) shall not apply to Federal or State funds to be used for transportation pur- poses. (5) LIMITATION ON OPERATING ASSISTANCE.—A State carrying out a program of operating assis- tance under this section may not limit the level or extent of use of the Government grant for the pay- ment of operating expenses. (h)117 TRANSFER OF FACILITIES AND EQUIPMENT.118— With the consent of the recipient currently having a facility or equipment acquired with assistance under this section, a State may transfer the facility or equip- ment to any recipient eligible to receive assistance un- der this chapter if the facility or equipment will con- tinue to be used as required under this section. (i) RELATIONSHIP TO OTHER LAWS.—(1) Sections 5323(a)(1)(D) and 5333(b) of this title apply to this sec- tion if the Secretary of Labor utilizes a special warranty that provides a fair and equitable arrangement to pro- tect the interests of employees.119 (2) This subsection does not affect or discharge a responsibility of the Secretary of Transportation under a law of the United States. 117 Sec. 3013(g) of Pub. L. No. 109-59 struck subsec. (h) and redesignated subsecs. (i) and (j) as subsecs. (h) and (i) respec- tively. Before redesignation, subsec. (h) read: “(h) AMOUNTS AVAILABLE FOR OPERATING ASSISTANCE.—An amount made available under this section may be used for operating assis- tance.”. 118 Sec. 3022 of Pub. L. No. 102-240 added subsec. 18(g) of the Federal Transit Act, the precodification version of this subsection. 119 Sec. 3013(h) of Pub. L. No. 109-59 struck “but the Secre- tary of Labor may waive the application of section 5333(b)” and inserted “if the Secretary of Labor…interests of employees”. Sec. 3013(h) directed the amendment of § 5311(j)(1). Following § 3013(g), the law probably should have directed the amend- ment of § 5311(i)(1), as redesignated by subsec. (g). SECTION 5312.120 RESEARCH, DEVELOPMENT, DEMONSTRATION,121 AND DEPLOYMENT PROJECTS.122 (a)123 RESEARCH, DEVELOPMENT, DEMONSTRATION, AND DEPLOYMENT PROJECTS.— (1) IN GENERAL.—The Secretary may make grants, contracts, cooperative agreements, and other agreements (including agreements with de- partments, agencies, and instrumentalities of the United States Government) for research, develop- ment, demonstration, and deployment projects, and evaluation of technology of national significance to public transportation, that the Secretary deter- mines will improve public transportation service or help public transportation service meet the total transportation needs at a minimum cost. 120 Pub. L. No. 103-272 codified portions of secs. 4, 6, 10, and 11 of the Federal Transit Act to constitute this section; see app. B; omitted text as surplus or obsolete in subsecs. (a), (b), (c), (d), (e), (f), (g) and (j); substituted text for consistency or clarity in subsecs. (c), (d), (e), and (h); and added text for clarity in subsecs. (b) and (d). 121 In the case of Westport Taxi Service v. Adams, 571 F.2d 697 (2d Cir. 1978), cert. denied, 439 U.S. 829 (1978), the court held that a demonstration project under this section that has a substantial effect on a community or its mass transportation service must comply with secs. 3(d) [5323(b)] regarding public hearings, and 3(e) [5323(a)(1)] regarding protection of private mass transportation companies. 122 Sec. 3014(e)(1) of Pub. L. No. 109-59 struck the section heading (“Research, development, demonstration, and training projects”) and inserted this substitute heading. Sec. 10 of the Federal Transit Act, Grants for Training Programs, was cre- ated by Pub. L. No. 89-562, which redesignated prior § 10 as § 13 of the Federal Transit Act, Labor Standards. The section on Grants for Training Programs was amended by Pub. L. No. 93- 87 and restated by sec. 306 of Pub. L. No. 95-599. Sec. 11 of the Federal Transit Act, Grants for Research and Training in Ur- ban Transportation Problems, was originally added by sec. 307 of Pub. L. No. 89-562, replacing prior § 11, which was redesig- nated § 14 of the Federal Transit Act, Environmental Protec- tion. 123 Sec. 3014(a) of Pub. L. No. 109-59 amended this subsec- tion generally, including changing the heading from “RESEARCH, DEVELOPMENT, AND DEMONSTRATION PROJECTS” to “RESEARCH, DEVELOPMENT, DEMONSTRATION, AND DEPLOYMENT PROJECTS”. Before amendment, the text of sub- sec. (a) read: The Secretary of Transportation (or the Secretary of Housing and Urban Development when required by section 5334(i) of this title) may undertake, or make grants or contracts (including agreements with departments, agencies, and instrumentalities of the United States Government) for, research, development, and demonstration projects related to urban mass transporta- tion that the Secretary decides will help reduce urban transpor- tation needs, improve mass transportation service, or help mass transportation service meet the total urban transportation needs at a minimum cost. The Secretary may request and re- ceive appropriate information from any source. This subsection does not limit the authority of the Secretary under another law. Sec. 13(b) of Pub. L. No. 91-453 inserted “grant or” in the precodification provision, § 6(a) of the Federal Transit Act.

44 (2) INFORMATION.—The Secretary may request and receive appropriate information from any source. (3) SAVINGS PROVISION.—This subsection does not limit the authority of the Secretary under any other law. (b)124 JOINT PARTNERSHIP PROGRAM FOR DEPLOYMENT OF INNOVATION.— (1) DEFINITION OF CONSORTIUM.—In this subsec- tion, the term “consortium”— (A) means 1 or more public or private organi- zations located in the United States that pro- vide public transportation service to the public and 1 or more businesses, including small- and medium-sized businesses, incorporated in a State, offering goods or services or willing to of- fer goods and services to public transportation operators; and (B) may include, as additional members, pub- lic or private research organizations located in the United States, or State or local governmen- tal authorities. (2) GENERAL AUTHORITY.—The Secretary may, under terms and conditions that the Secretary pre- scribes, enter into grants, contracts, cooperative agreements, and other agreements with consortia selected in accordance with paragraph (4), to pro- mote the early deployment of innovation in public transportation services, management, operational practices, or technology that has broad applicabil- ity. This paragraph shall be carried out in consulta- tion with the transit industry by competitively se- lected consortia that will share costs, risks, and rewards of early deployment of innovation. (3) CONSORTIUM CONTRIBUTION.—A consortium assisted under this subsection shall provide not less than 50 percent of the costs of any joint partnership project. Any business, organization, person, or gov- ernmental body may contribute funds to a joint partnership project. (4) NOTICE REQUIREMENT.—The Secretary shall periodically give public notice of the technical areas for which joint partnerships are solicited, required qualifications of consortia desiring to participate, the method of selection and evaluation criteria to be used in selecting participating consortia and pro- jects, and the process by which innovation projects described in paragraph (1) will be awarded. (5) USE OF REVENUES.—The Secretary shall ac- cept, to the maximum extent practicable, a portion of the revenues resulting from sales of an innova- tion project funded under this section. Such reve- nues shall be accounted for separately within the Mass Transit Account of the Highway Trust Fund 124 Sec. 3014(b) of Pub. L. No. 109-59 struck subsecs. (b) and (c) and redesignated subsecs. (d) and (e) as subsecs. (b) and (c), respectively. See app. D for text of subsecs. (b) and (c) before redesignation. Sec. 3015(a) of Pub. L. No. 105-178 added sub- secs. (d) and (e). and shall be available to the Secretary for activities under this subsection. Annual revenues that are less than $1,000,000 shall be available for obliga- tion without further appropriation and shall not be subject to any obligation limitation. (c) INTERNATIONAL PUBLIC TRANSPORTATION PROGRAM.— (1) ACTIVITIES.—The Secretary is authorized to engage in activities to inform the United States domestic public transportation community about technological innovations available in the interna- tional marketplace and activities that may afford domestic businesses the opportunity to become globally competitive in the export of public trans- portation products and services. Such activities may include— (A) development, monitoring, assessment, and dissemination domestically of information about worldwide public transportation market opportunities; (B) cooperation with foreign public sector en- tities in research, development, demonstration, training, and other forms of technology trans- fer and exchange of experts and information; (C) advocacy, in international public trans- portation markets, of firms, products, and ser- vices available from the United States; (D) informing the international market about the technical quality of public transportation products and services through participation in seminars, expositions, and similar activities; and (E) offering those Federal Transit Admini- stration technical services which cannot be readily obtained from the United States pri- vate sector to foreign public authorities plan- ning or undertaking public transportation pro- jects if the cost of these services will be recovered under the terms of each project. (2) COOPERATION.—The Secretary may carry out activities under this subsection in cooperation with other Federal agencies, State or local agencies, pub- lic or private125 nonprofit institutions, government laboratories, foreign governments, or any other or- ganization the Secretary determines is appropriate. (3) FUNDING.—The funds available to carry out this subsection shall include revenues paid to the Secretary by any cooperating organization or per- son. Such revenues126 shall be available to the Sec- retary to carry out activities under this subsection, including promotional materials, travel, reception, and representation expenses necessary to carry out such activities. Annual revenues that are less than $1,000,000 shall be available for obligation without 125 Sec. 1014(c) of Pub. L. No. 109-59 struck “public and pri- vate” and inserted “public or private”. 126 Sec. 3014(d) of Pub. L. No. 109-59 struck “shall be ac- counted for separately within the Mass Transit Account of the Highway Trust Fund and”.

45 further appropriation and shall not be subject to any obligation limitation. Not later than January 1 of each fiscal year, the Secretary shall publish a re- port on the activities under this paragraph funded from the account. SECTION 5313.127 TRANSIT COOPERATIVE RESEARCH PROGRAM.128 (a) COOPERATIVE RESEARCH PROGRAM.—The amounts made available under subsections (a)(5)(C)(iii) and (d)(1) of section 5338129 are available for a public trans- portation cooperative research program. The Secretary of Transportation shall establish an independent gov- erning board for the program. The board shall recom- mend public transportation research, development, and technology transfer activities the Secretary considers appropriate. (b)130 FEDERAL ASSISTANCE.—The Secretary may make grants to, and cooperative agreements with, the Na- tional Academy of Sciences to carry out activities under this subsection that the Secretary decides are appropri- ate. (c)131 GOVERNMENT'S SHARE.—If there would be a clear and direct financial benefit to an entity under a grant or contract financed under this section, the Secretary shall establish a Government share consistent with that benefit. 127 Pub. L. No. 103-272 codified portions of § 26 of the Fed- eral Transit Act to constitute this section; see app. B; omitted text as surplus in subsec. (b); and changed text to reflect prob- able will of Congress in subsec. (b). Sec. 3030 of Pub. L. No. 102-240 added sec. 26. 128 Sec. 3015(b)(1) of Pub. L. No. 109-59 struck the section heading (“State planning and research programs”) and inserted this heading. 129 Sec. 3015(a)(2)(A) of Pub. L. No. 109-59 struck “(1) The amounts made available under paragraphs (1) and (2)(C)(ii) of section 5338(c) [sic] of this title” and inserted “The amounts made available under subsections (a)(5)(C)(iii) and (d)(1) of section 5338”. Sec. 3029(b)(4) of Pub. L. No. 105-178 struck “Fifty percent of the amounts made available under section 5338(g)(3)” and inserted “The amounts made available under paragraphs (1) and (2)(C)(ii) of section 5338(d)”. 130 Sec. 3016(a)(1) of Pub. L. No. 109-59 struck subsec. (b). See app. D for text and legislative history of subsec. (b). Sec. 3016(a)(2)(B) of Pub. L. No. 109-59 amended subsec. (a) by striking “(2) The Secretary” and inserting “(b) FEDERAL ASSISTANCE.—The Secretary”. 131 Sec. 3016(a)(3) of Pub. L. No. 109-59 struck subsec. (c) and inserted the above text. Before amendment, the text of subsec. (c) read: “When there would be a clear and direct finan- cial benefit to an entity under a grant or contract financed under subsection (a) of this section, the Secretary shall estab- lish a United States Government share consistent with the benefit.”. SECTION 5314.132 NATIONAL RESEARCH PROGRAMS.133 (a) PROGRAM.—(1) The amounts made available under section 5338(d)134 are available to the Secretary of Transportation for grants, contracts, cooperative agreements, or other agreements135 for the purposes of sections136 5312, 5315, and 5322 of this title, as the Sec- retary considers appropriate. (2) The Secretary shall137 provide public transpor- tation-related technical assistance, demonstration programs, research, public education, and other ac- tivities the Secretary considers appropriate to help public transportation providers comply with the Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.). To the extent practicable, the Secre- tary shall carry out this paragraph through a con- tract with a national nonprofit organization serving individuals with disabilities that has a demon- strated capacity to carry out the activities. (3) Not more than 25 percent of the amounts available under paragraph (1) of this subsection is available to the Secretary for special demonstration initiatives, subject to terms the Secretary considers consistent with this chapter, except that section 5323(a)(1)(D) of this title applies to an operational grant financed in carrying out section 5312(a) of this title. For a nonrenewable grant of not more than $100,000, the Secretary shall provide expe- dited procedures on complying with the require- ments of this chapter. (4)(A) The Secretary may undertake a program of public transportation technology development in coordination with affected entities. 132 Pub. L. No. 103-272 codified portions of § 26 of the Fed- eral Transit Act to constitute this section; see app. B; omitted text as surplus in subsec. (a); and changed text to reflect prob- able will of Congress in subsec. (a). Sec. 3030 of Pub. L. No. 102-240 added § 26. 133 Sec. 3016(a)(1) of Pub. L. No. 109-59 struck the section heading (“National planning and research programs”) and inserted this heading. 134 Sec. 3016(a)(2)(A) of Pub. L. No. 109-59 struck “subsec- tions (d) and (h)(7) of section 5338 of this title” and inserted “section 5338(d)”. Sec. 3029(b)(6) of Pub. L. No. 105-178 substi- tuted “subsections (d) and (h)(7) of section 5338” for “section 5338(g)(4)”. 135 Sec. 3016(a)(2)(B) of Pub. L. No. 109-59 struck “and con- tracts” and inserted “, contracts, cooperative agreements, or other agreements”. 136 Sec. 3016(a)(2)(C) and (D) of Pub. L. No. 109-59 struck “5303-5306” and “5317”. Sec. 5110(c) of Pub. L. No. 105-178 repealed § 5317. 137 Sec. 3016(a)(3) of Pub. L. No. 109-59 struck “Of the amounts made available under paragraph (1) of this subsec- tion, the Secretary shall make available at least $3,000,000 to” and inserted “The Secretary shall”. Sec. 3016 of Pub. L. No. 105-178 substituted “$3,000,000” for “$2,000,000”.

46 (B)138 The Secretary shall develop guidelines for cost sharing in technology development pro- jects financed under this paragraph. The guidelines shall be flexible and reflect the ex- tent of technical risk, market risk, and antici- pated supplier benefits and payback periods. (5) The Secretary may use amounts appropriated under this subsection to supplement amounts available under section 5313(a) of this title, as the Secretary considers appropriate. (6)139 MEDICAL TRANSPORTATION DEMONSTRATION GRANTS.— (A) GRANTS AUTHORIZED.—The Secretary may award demonstration grants, from funds made available under paragraph (1), to eligible enti- ties to provide transportation services to indi- viduals to access dialysis treatments and other medical treatments for renal disease. (B) ELIGIBLE ACTIVITIES.—An entity shall be eligible to receive a grant under this paragraph if the entity— (i) meets the conditions described in sec- tion 501(c)(3) of the Internal Revenue Code of 1986; or (ii) is an agency of a State or unit of local government. (C) USE OF FUNDS.—Grant funds received under this paragraph may be used to provide transportation services to individuals to access dialysis treatments and other medical treat- ments for renal disease. (D) APPLICATION.— (i) IN GENERAL.—Each eligible entity de- siring a grant under this paragraph shall submit an application to the Secretary at such time, at such place, and containing such information as the Secretary may reasonably require. (ii) SELECTION OF GRANTEES.—In award- ing grants under this paragraph, the Sec- retary shall give preference to eligible enti- ties from communities with— (I) high incidence of renal disease; and (II) limited access to dialysis facili- ties. (E) RULEMAKING.—The Secretary shall issue regulations to implement and administer the 138 Sec. 3016(a)(4) and (5) of Pub. L. No. 109-59 struck sub- para. (B) and redesignated subpara. (C) as subpara. (B). Before the amendment, subpara. (B) read: The Secretary shall establish an Industry Technical Panel composed of representatives of transportation suppliers and op- erators and others involved in technology development. A major- ity of the Panel members shall represent the supply industry. The Panel shall assist the Secretary in identifying priority tech- nology development areas and in establishing guidelines for pro- ject development, project cost sharing, and project execution. 139 Sec. 3016(a)(6) of Pub. L. No. 109-59 added this para- graph. grant program established under this para- graph. (F) REPORT.—The Secretary shall submit a report on the results of the demonstration pro- jects funded under this paragraph to the Committee on Banking, Housing, and Urban Affairs of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives. (b) GOVERNMENT'S SHARE.—When there would be a clear and direct financial benefit to an entity under a grant, contract, cooperative agreement, or other agree- ment under subsection (a) or section 5312,140 the Secre- tary shall establish a United States Government share consistent with the benefit. (c)141 NATIONAL TECHNICAL ASSISTANCE CENTER FOR SENIOR TRANSPORTATION.— (1) ESTABLISHMENT.—The Secretary shall award grants to a national not-for-profit organization for the establishment and maintenance of a national technical assistance center. (2) ELIGIBILITY.—An organization shall be eligible to receive a grant under paragraph (1) if the or- ganization— (A) focuses significantly on serving the needs of the elderly; (B) has demonstrated knowledge and exper- tise in senior transportation policy and plan- ning issues; (C) has affiliates in a majority of the States; (D) has the capacity to convene local groups to consult on operation and development of senior transportation programs; and (E) has established close working relation- ships with the Federal Transit Administration and the Administration on Aging. (3) USE OF FUNDS.—The national technical assis- tance center established under this section shall— (A) gather best practices from throughout the Nation and provide such practices to local communities that are implementing senior transportation programs; (B) work with teams from local communities to identify how the communities are success- fully meeting the transportation needs of sen- ior citizens and any gaps in services in order to create a plan for an integrated senior transpor- tation program; (C) provide resources on ways to pay for sen- ior transportation services; (D) create a web site to publicize and circu- late information on senior transportation pro- grams; 140 Sec. 3016(a)(7) of Pub. L. No. 109-59 struck “or contract financed under subsection (a) of this section,” and inserted “, contract, cooperative agreement, or other agreement under subsection (a) or section 5312,”. 141 Sec. 3016(b) of Pub. L. No. 109-59 added this subsection.

47 (E) establish a clearinghouse for print, video, and audio resources on senior mobility; and (F) administer the demonstration grant pro- gram established under paragraph (4). (4) GRANTS AUTHORIZED.— (A) IN GENERAL.—The national technical as- sistance center established under this section, in consultation with the Federal Transit Ad- ministration, shall award senior transportation demonstration grants to— (i) local transportation organizations; (ii) State agencies; (iii) units of local government; and (iv) nonprofit organizations. (B) USE OF FUNDS.—Grant funds received under this paragraph may be used to— (i) evaluate the state of transportation services for senior citizens; (ii) recognize barriers to mobility that senior citizens encounter in their commu- nities; (iii) establish partnerships and promote coordination among community stake- holders, including public, not-for-profit, and for-profit providers of transportation services for senior citizens; (iv) identify future transportation needs of senior citizens within local communities; and (v) establish strategies to meet the unique needs of healthy and frail senior citizens. (C) SELECTION OF GRANTEES.—The Secretary shall select grantees under this paragraph based on a fair representation of various geo- graphical locations throughout the United States. SECTION 5315.142 NATIONAL TRANSIT143 INSTITUTE. (a)144 ESTABLISHMENT.—The Secretary shall award grants to Rutgers University to conduct a national transit institute. (b) DUTIES.— (1) IN GENERAL.—In cooperation with the Federal Transit Administration, State trans- portation departments, public transportation authorities, and national and international en- tities, the institute established under subsec- 142 Pub. L. No. 103-272 codified portions of § 29 of the Fed- eral Transit Act to constitute this section; see app. B; omitted text as surplus in subsec. (d); and substituted text in subsec. (a). Sec. 6022 of Pub. L. No. 102-240 added § 29. 143 Sec. 3017(a)(1) of Pub. L. No. 105-178, as amended by sec. 9009(l) of Pub. L. No. 105-178, struck “mass transportation” and inserted “transit”. 144 Sec. 3017(a) of Pub. L. No. 109-59 struck subsecs. (a) and (b) and inserted new subsecs. (a) and (b). See app. D for text of subsecs. (a) and (b) before amendment and legislative history. tion (a) shall develop and conduct training and educational programs for Federal, State, and local transportation employees, United States citizens, and foreign nationals engaged or to be engaged in Government-aid public transporta- tion work. (2) TRAINING AND EDUCATIONAL PROGRAMS.— The training and educational programs devel- oped under paragraph (1) may include courses in recent developments, techniques, and proce- dures related to— (A) intermodal and public transportation planning; (B) management; (C) environmental factors; (D) acquisition and joint use rights-of-way; (E) engineering and architectural design; (F) procurement strategies for public trans- portation systems; (G) turnkey approaches to delivering public transportation systems; (H) new technologies; (I) emission reduction technologies; (J) ways to make public transportation ac- cessible to individuals with disabilities; (K) construction, construction management, insurance, and risk management; (L) maintenance; (M) contract administration; (N) inspection; (O) innovative finance; (P) workplace safety; and (Q) public transportation security. (c) PROVIDING EDUCATION AND TRAINING.—Education and training of Government, State, and local transpor- tation employees under this section shall be provided— (1) by the Secretary at no cost to the States and local governments for subjects that are a Govern- ment program responsibility; or (2) when the education and training are paid un- der subsection (d) of this section, by the State, with the approval of the Secretary, through grants and contracts with public and private agencies, other institutions, individuals, and the institute. (d) AVAILABILITY OF AMOUNTS.—Not more than .5 per- cent of the amounts made available for a fiscal year beginning after September 30, 1991, to a State or pub- lic145 transportation authority in the State to carry out sections 5307 and 5309146 of this title is available for expenditure by the State and public transportation au- thorities in the State, with the approval of the Secre- tary, to pay not more than 80 percent of the cost of tui- tion and direct educational expenses related to educating and training State and local transportation employees under this section. 145 Sec. 3017(b) of Pub. L. No. 109-59 struck “mass” through- out this subsection. 146 Sec. 5(13) of Pub. L. No. 104-287 struck “5304 and 5306” and substituted “5307 and 5309”.

48 SECTION 5316.147 JOB ACCESS AND REVERSE COMMUTE FORMULA GRANTS. (a) DEFINITIONS.—In this section, the following defini- tions apply: (1) ACCESS TO JOBS PROJECT.—The term “access to jobs project” means a project relating to the devel- opment and maintenance of transportation services designed to transport welfare recipients and eligi- ble low-income individuals to and from jobs and ac- tivities related to their employment, including— (A) transportation projects to finance plan- ning, capital, and operating costs of providing access to jobs under this chapter; (B) promoting public transportation by low- income workers, including the use of public transportation by workers with nontraditional work schedules; (C) promoting the use of transit vouchers for welfare recipients and eligible low-income in- dividuals; and (D) promoting the use of employer-provided transportation, including the transit pass bene- fit program under section 132 of the Internal Revenue Code of 1986. (2) ELIGIBLE LOW-INCOME INDIVIDUAL.—The term “eligible low-income individual” means an individ- ual whose family income is at or below 150 percent of the poverty line (as that term is defined in sec- tion 673(2) of the Community Services Block Grant Act (42 U.S.C. 9902(2)), including any revision re- quired by that section) for a family of the size in- volved. (3) RECIPIENT.—The term “recipient” means a designated recipient (as defined in section 5307(a)(2)) and a State that receives a grant under this section directly. (4) REVERSE COMMUTE PROJECT.—The term “re- verse commute project” means a public transporta- tion project designed to transport residents of ur- banized areas and other than urbanized areas to suburban employment opportunities, including any projects to— (A) subsidize the costs associated with add- ing reverse commute bus, train, carpool, van routes, or service from urbanized areas and other than urbanized areas to suburban work- places; (B) subsidize the purchase or lease by a non- profit organization or public agency of a van or bus dedicated to shuttling employees from their residences to a suburban workplace; or (C) otherwise facilitate the provision of pub- lic transportation services to suburban em- ployment opportunities. (5) SUBRECIPIENT.—The term “subrecipient” means a State or local governmental authority, 147 Sec. 3018 of Pub. L. No. 109-59 inserted this section. The previous § 5316, related to university research institutes, had been repealed by sec. 5110(c) of Pub. L. No. 105-178. nonprofit organization, or operator of public trans- portation services that receives a grant under this section indirectly through a recipient. (6) WELFARE RECIPIENT.—The term “welfare re- cipient” means an individual who has received as- sistance under a State or tribal program funded under part A of title IV of the Social Security Act at any time during the 3-year period before the date on which the applicant applies for a grant under this section. (b) GENERAL AUTHORITY.— (1) GRANTS.—The Secretary may make grants under this section to a recipient for access to jobs and reverse commute projects carried out by the re- cipient or a subrecipient. (2) ADMINISTRATIVE EXPENSES.—A recipient may use not more than 10 percent of the amounts ap- portioned to the recipient under this section to ad- minister, plan, and provide technical assistance for a project funded under this section. (c) APPORTIONMENTS.— (1) FORMULA.—The Secretary shall apportion amounts made available for a fiscal year to carry out this section as follows: (A) 60 percent of the funds shall be appor- tioned among designated recipients (as defined in section 5307(a)(2)) for urbanized areas with a population of 200,000 or more in the ratio that— (i) the number of eligible low-income in- dividuals and welfare recipients in each such urbanized area; bears to (ii) the number of eligible low-income in- dividuals and welfare recipients in all such urbanized areas. (B) 20 percent of the funds shall be appor- tioned among the States in the ratio that— (i) the number of eligible low-income in- dividuals and welfare recipients in urban- ized areas with a population of less than 200,000 in each State; bears to (ii) the number of eligible low-income in- dividuals and welfare recipients in urban- ized areas with a population of less than 200,000 in all States. (C) 20 percent of the funds shall be appor- tioned among the States in the ratio that— (i) the number of eligible low-income in- dividuals and welfare recipients in other than urbanized areas in each State; bears to (ii) the number of eligible low-income in- dividuals and welfare recipients in other than urbanized areas in all States. (2) USE OF APPORTIONED FUNDS.—Except as pro- vided in paragraph (3)— (A) funds apportioned under paragraph (1)(A) shall be used for projects serving urban- ized areas with a population of 200,000 or more;

49 (B) funds apportioned under paragraph (1)(B) shall be used for projects serving urban- ized areas with a population of less than 200,000; and (C) funds apportioned under paragraph (1)(C) shall be used for projects serving other than urbanized areas. (3) EXCEPTIONS—A State may use funds appor- tioned under paragraphs (1)(B) and (1)(C)— (A) for projects serving areas other than the area specified in paragraph (2)(B) or (2)(C), as the case may be, if the Governor of the State certifies that all of the objectives of this section are being met in the specified area; or (B) for projects anywhere in the State if the State has established a statewide program for meeting the objectives of this section. (d) COMPETITIVE PROCESS FOR GRANTS TO SUBRECIPIENTS.— (1) AREAWIDE SOLICITATIONS.—A recipient of funds apportioned under subsection (c)(1)(A) shall conduct, in cooperation with the appropriate met- ropolitan planning organization, an areawide solici- tation for applications for grants to the recipient and subrecipients under this section. (2) STATEWIDE SOLICITATION.—A recipient of funds apportioned under subsection (c)(1)(B) or (c)(1)(C) shall conduct a statewide solicitation for applications for grants to the recipient and subre- cipients under this section. (3) APPLICATION.—Recipients and subrecipients seeking to receive a grant from funds apportioned under subsection (c) shall submit to the recipient an application in the form and in accordance with such requirements as the recipient shall establish. (4) GRANT AWARDS.—The recipient shall award grants under paragraphs (1) and (2) on a competi- tive basis. (e) TRANSFERS.— (1) IN GENERAL.—A State may transfer any funds apportioned to it under subsection (c)(1)(B) or (c)(1)(C), or both, to an apportionment under sec- tion 5311(c) or 5336, or both. (2) LIMITED TO ELIGIBLE PROJECTS.—Any appor- tionment transferred under this subsection shall be made available only for eligible job access and re- verse commute projects as described in this section. (3) CONSULTATION.—A State may make a transfer of an amount under this subsection only after con- sulting with responsible local officials and publicly owned operators of public transportation in each area for which the amount originally was awarded under subsection (d)(4). (f) GRANT REQUIREMENTS.— (1) IN GENERAL.—A grant under this section shall be subject to the requirements of section 5307. (2) FAIR AND EQUITABLE DISTRIBUTION.—A recipi- ent of a grant under this section shall certify to the Secretary that allocations of the grant to subrecipi- ents are distributed on a fair and equitable basis. (g) COORDINATION.— (1) IN GENERAL.—The Secretary shall coordinate activities under this section with related activities under programs of other Federal departments and agencies. (2) WITH NONPROFIT PROVIDERS.—A State that transfers funds to an apportionment under section 5336 pursuant to subsection (e) shall certify to the Secretary that any project for which the funds are requested under this section has been coordinated with nonprofit providers of services. (3) PROJECT SELECTION AND PLANNING.—A recipi- ent of funds under this section shall certify to the Secretary that— (A) the projects selected were derived from a locally developed, coordinated public transit- human services transportation plan; and (B) the plan was developed through a process that included representatives of public, private, and nonprofit transportation and human ser- vices providers and participation by the public. (h) GOVERNMENT’S SHARE OF COSTS.— (1) CAPITAL PROJECTS.—A grant for a capital pro- ject under this section may not exceed 80 percent of the net capital costs of the project, as determined by the Secretary. (2) OPERATING ASSISTANCE.—A grant made under this section for operating assistance may not exceed 50 percent of the net operating costs of the project, as determined by the Secretary. (3) REMAINDER.—The remainder of the net pro- ject costs— (A) may be provided from an undistributed cash surplus, a replacement or depreciation cash fund or reserve, a service agreement with a State or local social service agency or a pri- vate social service organization, or new capital; and (B) may be derived from amounts appropri- ated to or made available to a department or agency of the Government (other than the De- partment of Transportation) that are eligible to be expended for transportation. (4) USE OF CERTAIN FUNDS.—For purposes of paragraph (3)(B), the prohibitions on the use of funds for matching requirements under section 403(a)(5)(C)(vii) of the Social Security Act (42 U.S.C. 603(a)(5)(C)(vii)) shall not apply to Federal or State funds to be used for transportation pur- poses. (5) LIMITATION ON OPERATING ASSISTANCE.—A re- cipient carrying out a program of operating assis- tance under this section may not limit the level or extent of use of the Government grant for the pay- ment of operating expenses. (i) PROGRAM EVALUATION.— (1) COMPTROLLER GENERAL.—Beginning one year after the date of enactment of the Federal Public Transportation Act of 2005, and every 2 years thereafter, the Comptroller General shall—

50 (A) conduct a study to evaluate the grant program authorized by this section; and (B) transmit to the Committee on Transpor- tation and Infrastructure of the House of Rep- resentatives and the Committee on Banking, Housing, and Urban Affairs of the Senate a re- port describing the results of the study under subparagraph (A). (2) DEPARTMENT OF TRANSPORTATION.—Not later than 3 years after the date of enactment of Federal Public Transportation Act of 2005, the Secretary shall— (A) conduct a study to evaluate the effective- ness of the grant program authorized by this section and the effectiveness of recipients mak- ing grants to subrecipients under this section; and (B) transmit to the committees referred to in paragraph (1)(B) a report describing the results of the study under subparagraph (A). SECTION 5317.148 NEW FREEDOM PROGRAM. (a) DEFINITIONS.—In this section, the following defini- tions apply: (1) RECIPIENT.—The term “recipient” means a designated recipient (as defined in section 5307(a)(2)) and a State that receives a grant under this section directly. (2) SUBRECIPIENT.—The term “subrecipient” means a State or local governmental authority, nonprofit organization, or operator of public trans- portation services that receives a grant under this section indirectly through a recipient. (b) GENERAL AUTHORITY.— (1) GRANTS.—The Secretary may make grants under this section to a recipient for new public transportation services and public transportation alternatives beyond those required by the Ameri- cans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.) that assist individuals with disabilities with transportation, including transportation to and from jobs and employment support services. (2) ADMINISTRATIVE EXPENSES.—A recipient may use not more than 10 percent of the amounts ap- portioned to the recipient under this section to ad- minister, plan, and provide technical assistance for a project funded under this section. (c) APPORTIONMENTS.— (1) FORMULA.—The Secretary shall apportion amounts made available to carry out this section as follows: (A) 60 percent of the funds shall be appor- tioned among designated recipients (as defined in section 5307(a)(2)) for urbanized areas with a population of 200,000 or more in the ratio that— 148 Sec. 3019 of Pub. L. No. 109-59 inserted this section. The previous § 5317, related to transportation centers, had been repealed by sec. 5110(c) of Pub. L. No. 105-178. (i) the number of individuals with dis- abilities in each such urbanized area; bears to (ii) the number of individuals with dis- abilities in all such urbanized areas. (B) 20 percent of the funds shall be appor- tioned among the States in the ratio that— (i) the number of individuals with dis- abilities in urbanized areas with a popula- tion of less than 200,000 in each State; bears to (ii) the number of individuals with dis- abilities in urbanized areas with a popula- tion of less than 200,000 in all States. (C) 20 percent of the funds shall be appor- tioned among the States in the ratio that— (i) the number of individuals with dis- abilities in other than urbanized areas in each State; bears to (ii) the number of individuals with dis- abilities in other than urbanized areas in all States. (2) USE OF APPORTIONED FUNDS.—Funds appor- tioned under paragraph (1) shall be used for pro- jects as follows: (A) Funds apportioned under paragraph (1)(A) shall be used for projects serving urban- ized areas with a population of 200,000 or more. (B) Funds apportioned under paragraph (1)(B) shall be used for projects serving urban- ized areas with a population of less than 200,000. (C) Funds apportioned under paragraph (1)(C) shall be used for projects serving other than urbanized areas. (3) TRANSFERS.— (A) IN GENERAL.—A State may transfer any funds apportioned to it under paragraph (1)(B) or (1)(C), or both, to an apportionment under section 5311(c) or 5336, or both. (B) LIMITED TO ELIGIBLE PROJECTS.—Any funds transferred pursuant to this paragraph shall be made available only for eligible pro- jects selected under this section. (C) CONSULTATION.—A State may make a transfer of an amount under this subsection only after consulting with responsible local of- ficials and publicly owned operators of public transportation in each area for which the amount originally was awarded under subsec- tion (d)(4). (d) COMPETITIVE PROCESS FOR GRANTS TO SUBRECIPIENTS.— (1) AREAWIDE SOLICITATIONS.—A recipient of funds apportioned under subsection (c)(1)(A) shall conduct, in cooperation with the appropriate met- ropolitan planning organization, an areawide solici- tation for applications for grants to the recipient and subrecipients under this section.

51 (2) STATEWIDE SOLICITATION.—A recipient of funds apportioned under subsection (c)(1)(B) or (c)(1)(C) shall conduct a statewide solicitation for applications for grants to the recipient and subre- cipients under this section. (3) APPLICATION.—Recipients and subrecipients seeking to receive a grant from funds apportioned under subsection (c) shall submit to the recipient an application in the form and in accordance with such requirements as the recipient shall establish. (4) GRANT AWARDS.—The recipient shall award grants under paragraphs (1) and (2) on a competi- tive basis. (e) GRANT REQUIREMENTS.— (1) IN GENERAL.—A grant under this section shall be subject to all the requirements of section 5310 to the extent the Secretary considers appropriate. (2) FAIR AND EQUITABLE DISTRIBUTION.—A recipi- ent of a grant under this section shall certify that allocations of the grant to subrecipients are dis- tributed on a fair and equitable basis. (f) COORDINATION.— (1) IN GENERAL.—The Secretary shall coordinate activities under this section with related activities under programs of other Federal departments and agencies. (2) WITH NONPROFIT PROVIDERS.—A recipient that transfers funds to an apportionment under section 5336 pursuant to subsection (c)(2) shall certify that the project for which the funds are requested under this section has been coordinated with nonprofit providers of services. (3) PROJECT SELECTION AND PLANNING.— Beginning in fiscal year 2007, a recipient of funds under this section shall certify that— (A) the projects selected were derived from a locally developed, coordinated public transit- human services transportation plan; and (B) the plan was developed through a process that included representatives of public, private, and nonprofit transportation and human ser- vices providers and participation by the public. (g) GOVERNMENT’S SHARE OF COSTS.— (1) CAPITAL PROJECTS.—A grant for a capital pro- ject under this section may not exceed 80 percent of the net capital costs of the project, as determined by the Secretary. (2) OPERATING ASSISTANCE.—A grant made under this section for operating assistance may not exceed 50 percent of the net operating costs of the project, as determined by the Secretary. (3) REMAINDER.—The remainder of the net pro- ject costs— (A) may be provided from an undistributed cash surplus, a replacement or depreciation cash fund or reserve, a service agreement with a State or local social service agency or a pri- vate social service organization, or new capital; and (B) may be derived from amounts appropri- ated to or made available to a department or agency of the Government (other than the De- partment of Transportation) that are eligible to be expended for transportation. (4) USE OF CERTAIN FUNDs.—For purposes of paragraph (3)(B), the prohibitions on the use of funds for matching requirements under section 403(a)(5)(C)(vii) of the Social Security Act (42 U.S.C. 603(a)(5)(C)(vii)) shall not apply to Federal or State funds to be used for transportation pur- poses. (5) Limitation on operating assistance.—A recipi- ent carrying out a program of operating assistance under this section may not limit the level or extent of use of the Government grant for the payment of operating expenses. Section 5318.149 Bus Testing Facility. (a)150 FACILITY.—The Secretary shall maintain one fa- cility for testing a new bus model for maintainability, reliability, safety, performance (including braking per- formance), structural integrity, fuel economy, emis- sions, and noise. (b) OPERATION AND MAINTENANCE.—The Secretary shall enter into a contract or cooperative agreement with, or make a grant to,151 a qualified person or organi- zation152 to operate and maintain the facility. The con- tract, cooperative agreement, or grant153 may provide for the testing of rail cars and other public transporta- tion154 vehicles at the facility. (c) FEES.—The person operating and maintaining the facility shall establish and collect fees for the testing of vehicles at the facility. The Secretary must approve the fees. (d) AVAILABILITY OF AMOUNTS TO PAY FOR TESTING.— The Secretary shall enter into a contract or cooperative agreement with, or make a grant to,155 the operator of 149 Pub. L. No. 103-272 codified portions of § 317(b) of Pub. L. No. 100-17, § 6021 of Pub. L. No. 102-240, and § 3(m) of the Federal Transit Act to constitute this section; see app. B; omit- ted text as surplus in subsecs. (c), (d), and (e); and substituted text in subsec. (e). 150 Sec. 3020(a) of Pub. L. No. 109-59 amended this subsec- tion generally. The effective change was to change the heading from “ESTABLISHMENT” and to delete the final sentence: “The facility shall be established by renovating a facility built with assistance of the United States Government to train rail per- sonnel.”. 151 Sec. 3018(a)(1) of Pub. L. No. 105-178 struck “make a contract with” and inserted “enter into a contract or coopera- tive agreement with, or make a grant to,”. 152 Sec. 3018(a)(2) of Pub. L. No. 105-178 inserted “or or- ganization”. 153 Sec. 3018(a)(3) of Pub. L. No. 105-178 inserted “, coopera- tive agreement, or grant”. 154 Sec. 3018(a)(4) of Pub. L. No. 105-178 inserted “mass transportation”. 155 Sec. 3018(b) of Pub. L. No. 105-178 struck “make a con- tract with” and inserted “enter into…grant to,”.

52 the facility under which the Secretary shall pay 80 per- cent of the cost of testing a vehicle at the facility from amounts available to carry out this section.156 The entity having the vehicle tested shall pay 20 percent of the cost. (e)157 ACQUIRING NEW BUS MODELS.—Amounts appro- priated or made available under this chapter may be obligated or expended to acquire a new bus model only if a bus of that model has been tested at the facility maintained by the Secretary under subsection (a). SECTION 5319.158 BICYCLE FACILITIES. A project to provide access for bicycles to public transportation facilities, to provide shelters and park- ing facilities for bicycles in or around public transporta- tion facilities, or to install equipment for transporting bicycles on public transportation vehicles is a capital project eligible for assistance under sections 5307, 5309, and 5311 of this title. Notwithstanding sections 5307(e), 5309(h), and 5311(g) of this title, a grant of the United States Government under this chapter for a project made eligible by this section is for 90 percent of the cost of the project, except that, if the grant or any portion of the grant is made with funds required to be expended under section 5307(k) and the project involves providing bicycle access to public transportation, that grant or portion of that grant shall be at a Federal share of 95 percent.159 SECTION 5320.160 ALTERNATIVE TRANSPORTATION IN PARKS AND PUBLIC LANDS. (a) IN GENERAL.— (1) AUTHORIZATION.— 156 Sec. 3020(b) of Pub. L. No. 109-59 struck “under section 5309(m)(1)(C) of this title” and inserted “to carry out this sec- tion”. Sec. 3029(b)(8) of Pub. L. No. 105-178 struck “5338(j)(5)” and inserted “5309(m)(1)(C)”. 157 Sec. 3020(c) of Pub. L. No. 109-59 generally amended this subsection. Before amendment, the subsection read: REVOLVING LOAN FUND.—The Secretary has a bus testing re- volving loan fund consisting of amounts authorized for the fund under section 317(b)(5) of the Surface Transportation and Uni- form Relocation Assistance Act of 1987. [Pub. L. No. 100-17.] The Secretary shall make available as repayable advances from the fund to the person operating and maintaining the facility amounts to operate and maintain the facility. Sec. 6(8) of Pub. L. No. 103-429 inserted “Uniform”. Sec. 7(b) of Pub. L. No. 103-272 repealed § 317(b)(5). 158 Pub. L. No. 103-272 codified § 25 of the Federal Transit Act to constitute this section; see app. B; omitted text as sur- plus; and substituted text. Sec. 326 of Pub. L. No. 100-17 added § 25. 159 Sec. 3019 of Pub. L. No. 105-178 struck “under this sec- tion is for 90 percent of the cost of the project” and inserted “made eligible…Federal share of 95 percent”. 160 Sec. 3021(a) of Pub. L. No. 109-59 struck the previous § 5320, and inserted this section. See app. D for text of § 5320 before this substitution. (A) IN GENERAL.—The Secretary, in consulta- tion with the Secretary of the Interior, may award a grant or enter into a contract, coopera- tive agreement, interagency agreement, intra- agency agreement, or other agreement to carry out a qualified project under this section to en- hance the protection of national parks and pub- lic lands and increase the enjoyment of those visiting the parks and public lands by— (i) ensuring access to all, including per- sons with disabilities; (ii) improving conservation and park and public land opportunities in urban areas through partnering with State and local governments; and (iii) improving park and public land transportation infrastructure. (B) CONSULTATION WITH OTHER AGENCIES.—To the extent that projects are proposed or funded in eligible areas that are not within the juris- diction of the Department of the Interior, the Secretary of the Interior shall consult with the heads of the relevant Federal land manage- ment agencies in carrying out the responsibili- ties under this section. (2) USE OF FUNDS.—A grant, cooperative agree- ment, interagency agreement, intra-agency agree- ment, or other agreement for a qualified project under this section shall be available to finance the leasing of equipment and facilities for use in public transportation, subject to any regulation that the Secretary may prescribe limiting the grant or agreement to leasing arrangements that are more cost-effective than purchase or construction. (3) ALTERNATIVE TRANSPORTATION FACILITIES AND SERVICES—Projects receiving assistance under this section shall provide alternative transportation fa- cilities and services that complement and enhance existing transportation services in national parks and public lands in a manner that is consistent with Department of Interior and other public land management policies regarding private automobile access to and in such parks and lands. (b) DEFINITIONS.—In this section, the following defini- tions apply: (1) ELIGIBLE AREA.—The term “eligible area” means any federally owned or managed park, ref- uge, or recreational area that is open to the general public, including— (A) a unit of the National Park System; (B) a unit of the National Wildlife Refuge System; (C) a recreational area managed by the Bu- reau of Land Management; (D) a recreation area managed by the Bureau of Reclamation; and (E) a unit of the National Forest System. (2) FEDERAL LAND MANAGEMENT AGENCY.—The term “Federal land management agency” means a Federal agency that manages an eligible area.

53 (3) ALTERNATIVE TRANSPORTATION.—The term “al- ternative transportation” means transportation by bus, rail, or any other publicly or privately owned conveyance that provides to the public general or special service on a regular basis, including sight- seeing service. Such term also includes a nonmotor- ized transportation system (including the provision of facilities for pedestrians, bicycles, and nonmotor- ized watercraft). (4) QUALIFIED PARTICIPANT.—The term “qualified participant” means— (A) a Federal land management agency; or (B) a State, tribal, or local governmental au- thority with jurisdiction over land in the vicin- ity of an eligible area acting with the consent of the Federal land management agency, alone or in partnership with a Federal land manage- ment agency or other governmental or nongov- ernmental participant. (5) QUALIFIED PROJECT.—The term “qualified pro- ject” means a planning or capital project in or in the vicinity of an eligible area that— (A) is an activity described in section 5302(a)(1)(A), 5303, 5304, 5305, or 5309(b); (B) involves— (i) the purchase of rolling stock that in- corporates clean fuel technology or the re- placement of buses of a type in use on the date of enactment of the Federal Public Transportation Act of 2005 with clean fuel vehicles; or (ii) the deployment of alternative trans- portation vehicles that introduce innova- tive technologies or methods; (C) relates to the capital costs of coordinating the Federal land management agency public transportation systems with other public transportation systems; (D) provides a nonmotorized transportation system (including the provision of facilities for pedestrians, bicycles, and nonmotorized water- craft); (E) provides waterborne access within or in the vicinity of an eligible area, as appropriate to and consistent with this section; or (F) is any other alternative transportation project that— (i) enhances the environment; (ii) prevents or mitigates an adverse im- pact on a natural resource; (iii) improves Federal land management agency resource management; (iv) improves visitor mobility and acces- sibility and the visitor experience; (v) reduces congestion and pollution (in- cluding noise pollution and visual pollu- tion); or (vi) conserves a natural, historical, or cultural resource (excluding rehabilitation or restoration of a non-transportation facil- ity). (c) FEDERAL AGENCY COOPERATIVE ARRANGEMENTS.— The Secretary shall develop cooperative arrangements with the Secretary of the Interior that provide for— (1) technical assistance in alternative transporta- tion; (2) interagency and multidisciplinary teams to develop Federal land management agency alterna- tive transportation policy, procedures, and coordi- nation; and (3) the development of procedures and criteria re- lating to the planning, selection, and funding of qualified projects and the implementation and oversight of the program of projects in accordance with this section. (d) LIMITATION ON USE OF AVAILABLE AMOUNTS.— (1) IN GENERAL.—The Secretary, in consultation with the Secretary of the Interior, may use not more than 10 percent of the amount made available for a fiscal year under section 5338(b)(2)(J) to carry out planning, research, and technical assistance under this section, including the development of technology appropriate for use in a qualified pro- ject. (2) ADDITIONAL AMOUNTS.—Amounts made avail- able under this subsection are in addition to amounts otherwise available to the Secretary to carry out planning, research, and technical assis- tance under this chapter or any other provision of law. (3) MAXIMUM AMOUNT.—No qualified project shall receive more than 25 percent of the total amount made available to carry out this section under sec- tion 5338(b)(2)(J) for any fiscal year. (e) PLANNING PROCESS.—In undertaking a qualified project under this section— (1) if the qualified participant is a Federal land management agency— (A) the Secretary, in cooperation with the Secretary of the Interior, shall develop trans- portation planning procedures that are consis- tent with— (i) the metropolitan planning provisions under section 5303; (ii) the statewide planning provisions under section 5304; and (iii) the public participation require- ments under section 5307(d); and (B) in the case of a qualified project that is at a unit of the National Park System, the plan- ning process shall be consistent with the gen- eral management plans of the unit of the Na- tional Park System; and (2) if the qualified participant is a State or local governmental authority, or more than one State or local governmental authority in more than one State, the qualified participant shall— (A) comply with the metropolitan planning provisions under section 5303;

54 (B) comply with the statewide planning pro- visions under section 5304; (C) comply with the public participation re- quirements under section 5307(d); and (D) consult with the appropriate Federal land management agency during the planning process. (f) COST SHARING.— (1) GOVERNMENT’S SHARE.—The Secretary, in co- operation with the Secretary of the Interior, shall establish the Government’s share of the net project cost to be provided to a qualified participant under this section. (2) CONSIDERATION.—In establishing the Gov- ernment’s share of the net project cost to be pro- vided under this section, the Secretary shall con- sider— (A) visitation levels and the revenue derived from user fees in the eligible area in which the qualified project is carried out; (B) the extent to which the qualified partici- pant coordinates with a public transportation authority or private entity engaged in public transportation; (C) private investment in the qualified pro- ject, including the provision of contract ser- vices, joint development activities, and the use of innovative financing mechanisms; (D) the clear and direct benefit to the quali- fied participant; and (E) any other matters that the Secretary considers appropriate to carry out this section. (3) SPECIAL RULE.—Notwithstanding any other provision of law, funds appropriated to any Federal land management agency may be counted toward the remainder of the net project cost. (g) SELECTION OF QUALIFIED PROJECTS.— (1) IN GENERAL.—The Secretary of the Interior, after consultation with and in cooperation with the Secretary, shall determine the final selection and funding of an annual program of qualified projects in accordance with this section. (2) CONSIDERATIONS.—In determining whether to include a project in the annual program of qualified projects, the Secretary of the Interior shall con- sider— (A) the justification for the qualified project, including the extent to which the qualified pro- ject would conserve resources, prevent or miti- gate adverse impact, and enhance the envi- ronment; (B) the location of the qualified project, to ensure that the selected qualified projects— (i) are geographically diverse nation- wide; and (ii) include qualified projects in eligible areas located in both urban areas and ru- ral areas; (C) the size of the qualified project, to ensure that there is a balanced distribution; (D) the historical and cultural significance of a qualified project; (E) safety; (F) the extent to which the qualified project would— (i) enhance livable communities; (ii) reduce pollution (including noise pol- lution, air pollution, and visual pollution); (iii) reduce congestion; and (iv) improve the mobility of people in the most efficient manner; and (G) any other matters that the Secretary of the Interior considers appropriate to carry out this section, including— (i) visitation levels; (ii) the use of innovative financing or joint development strategies; and (iii) coordination with gateway commu- nities. (h) QUALIFIED PROJECTS CARRIED OUT IN ADVANCE.— (1) IN GENERAL.—When a qualified participant carries out any part of a qualified project without assistance under this section in accordance with all applicable procedures and requirements, the Secre- tary, in consultation with the Secretary of the Inte- rior, may pay the share of the net capital project cost of a qualified project if— (A) the qualified participant applies for the payment; (B) the Secretary approves the payment; and (C) before carrying out that part of the quali- fied project, the Secretary approves the plans and specifications in the same manner as plans and specifications are approved for other pro- jects assisted under this section. (2) FINANCING COSTS.— (A) IN GENERAL.—The cost of carrying out part of a qualified project under paragraph (1) includes the amount of interest earned and payable on bonds issued by a State or local governmental authority, to the extent that pro- ceeds of the bond are expended in carrying out that part. (B) LIMITATION ON AMOUNT OF INTEREST.— The rate of interest under this paragraph may not exceed the most favorable rate reasonably available for the qualified project at the time of borrowing. (C) CERTIFICATION.—The qualified partici- pant shall certify, in a manner satisfactory to the Secretary, that the qualified participant has exercised reasonable diligence in seeking the most favorable interest rate. (i) RELATIONSHIP TO OTHER LAWS.— (1) SECTION 5307.—A qualified participant under this section shall be subject to the requirements of sections 5307 and 5333(a) to the extent the Secre- tary determines to be appropriate.

55 (2) OTHER REQUIREMENTS.—A qualified partici- pant under this section shall be subject to any other requirements that the Secretary determines to be appropriate to carry out this section, including re- quirements for the distribution of proceeds on dis- position of real property and equipment resulting from a qualified project assisted under this section. (3) PROJECT MANAGEMENT PLAN.—If the amount of assistance anticipated to be required for a qualified project under this section is not less than $25,000,000— (A) the qualified project shall, to the extent the Secretary considers appropriate, be carried out through a full funding grant agreement in accordance with section 5309(g); and (B) the qualified participant shall prepare a project management plan in accordance with section 5327(a). (j) ASSET MANAGEMENT.—The Secretary, in consulta- tion with the Secretary of the Interior, may transfer the interest of the Department of Transportation in, and control over, all facilities and equipment acquired under this section to a qualified participant for use and dispo- sition in accordance with any property management regulations that the Secretary determines to be appro- priate. (k) COORDINATION OF RESEARCH AND DEPLOYMENT OF NEW TECHNOLOGIES.— (1) GRANTS AND OTHER ASSISTANCE.—The Secre- tary, in cooperation with the Secretary of the Inte- rior, may undertake, or make grants, cooperative agreements, contracts (including agreements with departments, agencies, and instrumentalities of the Federal Government) or other agreements for re- search, development, and deployment of new tech- nologies in eligible areas that will— (A) conserve resources; (B) prevent or mitigate adverse environ- mental impact; (C) improve visitor mobility, accessibility, and enjoyment; and (D) reduce pollution (including noise pollu- tion and visual pollution). (2) INFORMATION.—The Secretary may request and receive appropriate information from any source. (3) FUNDING.—Grants, cooperative agreements, contracts, and other agreements under paragraph (1) shall be awarded from amounts allocated under subsection (d)(1). (l) INNOVATIVE FINANCING.—A qualified project receiv- ing financial assistance under this section shall be eli- gible for funding through a State infrastructure bank or other innovative financing mechanism available to fi- nance an eligible project under this chapter. (m) REPORTS.— (1) IN GENERAL.—The Secretary, in consultation with the Secretary of the Interior, shall annually submit a report on the allocation of amounts made available to assist qualified projects under this sec- tion to— (A) the Committee on Banking, Housing, and Urban Affairs of the Senate; (B) the Committee on Transportation and In- frastructure of the House of Representatives; and (C) the Committee on Resources of the House of Representatives and the Committee on En- ergy and Natural Resources of the Senate. (2) ANNUAL REPORTS.—The report required under paragraph (1) shall be included in the report sub- mitted under section 5309(k)(1). SECTION 5321.161 CRIME PREVENTION AND SECURITY. The Secretary of Transportation may make capital grants from amounts available under section 5338 of this title to public transportation systems for crime pre- vention and security. This chapter does not prevent the financing of a project under this section when a local governmental authority other than the grant applicant has law enforcement responsibilities. SECTION 5322.162 HUMAN RESOURCE PROGRAMS. (a) IN GENERAL.—163The Secretary of Transportation may undertake, or make grants and contracts for, pro- grams that address human resource needs as they ap- ply to public transportation activities. A program may include— (1) an employment training program; (2) an outreach program to increase minority and female employment in public transportation activi- ties; (3) research on public transportation personnel and training needs; and (4) training and assistance for minority business opportunities. (b)164 FELLOWSHIPS.— (1) AUTHORITY TO MAKE GRANTS.—The Secretary may make grants to States, local governmental au- thorities, and operators of public transportation systems to provide fellowships to train personnel employed in managerial, technical, and profes- sional positions in the public transportation field. (2) TERMS.— 161 Pub. L. No. 103-272 codified § 24 of the Federal Transit Act to constitute this section; see app. B. Sec. 325 of Pub. L. No. 100-17 added § 24. 162 Pub. L. No. 103-272 codified § 20 of the Federal Transit Act to constitute this section; see app. B; omitted text as sur- plus; and substituted text. Sec. 315 of Pub. L. No. 95-599 added § 20. 163 Sec. 3022(a) of Pub. L. No. 109-59 inserted “(a) IN GENERAL.—”. 164 Sec. 3022(b) of Pub. L. No. 109-59 added this subsection.

56 (A) PERIOD OF TRAINING.—A fellowship under this subsection may not be for more than 1 year of training in an institution that offers a program applicable to the public transportation industry. (B) SELECTION OF INDIVIDUALS.—A recipient of a grant for a fellowship under this subsec- tion shall select an individual on the basis of demonstrated ability and for the contribution the individual reasonably can be expected to make to an efficient public transportation op- eration. (C) AMOUNT.—A grant for a fellowship under this subsection may not be more than the lesser of $65,000 or 75 percent of the sum of— (i) tuition and other charges to the fel- lowship recipient; (ii) additional costs incurred by the training institution and billed to the grant recipient; and (iii) the regular salary of the fellowship recipient for the period of the fellowship to the extent the salary is actually paid or re- imbursed by the grant recipient. SECTION 5323.165 GENERAL PROVISIONS ON ASSISTANCE. (a) INTERESTS IN PROPERTY.—(1)166 IN GENERAL.— Financial assistance provided under this chapter to a State or a local governmental authority may be used to acquire an interest in, or to buy property of, a private company engaged in public transportation, for a capital project for property acquired from a private company engaged in public transportation after July 9, 1964, or to operate a public transportation facility or equipment in competition with, or in addition to, transportation service provided by an existing public transportation company, only if— (A) the Secretary determines167 that such fi- nancial assistance is essential to a program of 165 Pub. L. No. 103-272 codified § 164 of Pub. L. No. 93-87, § 165 of Pub. L. No. 97-424, § 502(i) of Pub. L. No. 102-388, and portions of §§ 3 and 12 of the Federal Transit Act to constitute this section; see app. B; omitted text as surplus in subsecs. (a), (b), (d), (e), (f), (j), and (k); and substituted text in subsecs. (a), (b), (d), (e), (f), (g), and (j); and added text for clarity in subsecs. (b) and (j). 166 Sec. 3023(a) of Pub. L. No. 109-59 struck para. (1) and in- serted this paragraph. Before amendment, para. (1) contained a subpara. (D), which read: “(D) the Secretary of Labor certifies that the assistance complies with section 5333(b) of this title.”. 167 The Secretary of Housing and Urban Development is au- thorized to assist the Secretary in making determination under § 3(e)(1), 4(a), and 5 [§ 5323(a)(1)(A) and 5309(h)] and to act jointly with the Secretary in establishing the criteria referred to in § 4(a) [§ 5309(h)]. See § 1(a)(1) of Reorganization Plan No. 2 of 1968, infra app. A. projects required under sections 5303, 5304, and 5306;168 (B) the Secretary determines that the pro- gram provides for the participation of private companies engaged in public transportation to the maximum extent feasible;169 and (C) just compensation under State or local law will be paid to the company for its fran- chise or property.170 (2)171 LIMITATION.—A governmental authority may not use financial assistance of the United States Government to acquire land, equipment, or a facility used in public transportation from an- other governmental authority in the same geo- graphic area.172 (b)173 NOTICE AND PUBLIC HEARING.174— 168 Sec. 302 of Pub. L. No. 95-599 struck “a program pro- posed or under active preparation, for a unified or officially coordinated urban transportation system as part of the com- prehensively planned development of the urban area” and in- serted “the program of projects required by section 8 of this Act,”. 169 Several courts have held that mass transportation pro- viders are not within the class of persons for whose benefit the UMT Act was enacted. A.B.C. Bus Lines v. Urban Mass Transp. Admin., 831 F.2d 360 (1st Cir. 1987); Associated Busi- ness of Franklin v. Warren County Board of County Comm’rs, 522 F. Supp. 1015 (S.D. Ohio 1981). In the case of Westport Taxi Service v. Adams, 571 F.2d 697 (2d Cir. 1978), cert. de- nied, 439 U.S. 829 (1978), the court held that a plaintiff who is “arguably” a private mass transportation company and who is likely to be financially injured by the approval of a grant to a publicly-owned system has standing to sue to enjoin the expen- diture of grant funds. Accord, Hudson Bus Transp. v. Adams, Civil No. 79-464 (D.N.J. Sept. 17, 1979), aff'd w/ op., 622 F.2d 578 (3d Cir. 1980). Contra, South Suburban Safeway Lines v. City of Chicago, 416 F.2d 535 (7th Cir. 1969). 170 In the case of Rose City Transit Co. v. City of Portland, 525 P.2d 1325 (Or. Ct. App. 1974), a proceeding involving the acquisition by the city of the assets of a private transit opera- tor using federal funds to pay two-thirds of the acquisition cost, it was held that the provisions of § 3(e) [§ 5323(a)(1)] requiring just and adequate compensation to be paid to the extent re- quired by applicable State or local laws had no application with respect to the issue of whether or not the plaintiffs were enti- tled to the going concern value of their franchise to operate a transit business within the boundaries of defendant city. The court also held that the provisions of § 13(c) [§ 5333(b)] were intended to protect the interests of affected transit employees only, and were inapplicable to the issue of the plaintiffs' liabil- ity for meeting pension claims of former employees. The case was subsequently modified on other grounds. 533 P.2d 339 (Or. 1975). 171 Sec. 3023(a)(2) of Pub. L. No. 109-59 amended this para- graph by adding the section heading. 172 Sec. 308(d) of Pub. L. No. 95-599 added the precodifica- tion version of this paragraph. 173 Sec. 3023(b) of Pub. L. No. 109-59 amended this subsec- tion generally. See app. D for text of subsec. (b) before amend- ment and legislative history. 174 The public hearing requirement has been held to apply to demonstration projects funded pursuant to § 6 [§ 5312(a)].

57 (1) IN GENERAL.—For a capital project that will substantially affect a community, or the public transportation service of a community, an applicant shall— (A) provide an adequate opportunity for pub- lic review and comment on the project; (B) after providing notice, hold a public hear- ing on the project if the project affects signifi- cant economic, social, or environmental inter- ests; (C) consider the economic, social, and envi- ronmental effects of the project; and (D) find that the project is consistent with of- ficial plans for developing the community.175 (2) NOTICE.—Notice of a hearing under this sub- section— (A) shall include a concise description of the proposed project; and (B) shall be published in a newspaper of gen- eral circulation in the geographic area the pro- ject will serve. (3) APPLICATION REQUIREMENTS.—An application for a grant under this chapter for a capital project described in paragraph (1) shall include— (A) a certification that the applicant has complied with the requirements of this subsec- tion; and (B) in the environmental record for the pro- ject, evidence that the applicant has complied with the requirements of this subsection. (c)176 FARES NOT REQUIRED.—This chapter does not re- quire that elderly individuals and individuals with dis- abilities be charged a fare. Westport Taxi Service v. Adams, 571 F.2d 697 (2d Cir. 1978), cert. denied, 439 U.S. 829 (1978). New or supplemental public hearings would not be required unless there is a significant change in the project, Main-Amherst Business Ass’n v. Adams, 461 F. Supp. 1077 (W.D.N.Y. 1978); Port Auth. Trans-Hudson v. Baum Bus Co., 384 A.2d 209 (N.J. Super. Ct. 1978), and unless all interested parties have not otherwise had an ade- quate opportunity to be heard, Main-Amherst Business Ass’n v. Adams, supra. 175 The language in these provisions has been held to not create rights for a benefited class of persons. The “legislative history indicates that Congress was interested in ensuring that local officials consider the local effects of their decisions but not at the expense of delaying projects unduly.” City of Evanston v. Regional Transp. Auth., 825 F.2d 1121 7th Cir. (1987), cert. denied, 484 U.S. 1005 (1988); See also Rapid Transit Advocates v. Southern Cal. Rapid Transit District, 752 F.2d. 373, 377 (§§ 3(d)(2) and (3) [5323(b)(1)(C) and (D)] “are primarily spending directives to the Secretary of Transportation, specifying condi- tions under which grants may be made”). One court has held that these public hearing requirements do not apply to con- tracts or demonstration projects undertaken by or with the Secretary of Transportation directly. Township of Ridley v. Blanchette, 421 F. Supp. 435 (E.D. Pa. 1976). See also notes to § 5324(b), infra. 176 Sec. 3023(c) of Pub. L. No. 109-59 amended this subsec- tion generally. Before amendment, the subsection read: “(c) ACQUIRING NEW BUS MODELS.—Amounts appropriated or (d)177 CONDITION ON CHARTER BUS TRANSPORTATION SERVICE.178—(1)179 AGREEMENTS—Financial assistance under this chapter may be used to buy or operate180 a bus only if the applicant, governmental authority, or publicly owned operator that receives the assistance agrees that, except as provided in the agreement, the governmental authority or an operator of public trans- portation for the governmental authority will not pro- vide charter bus transportation service outside the ur- ban area in which it provides regularly scheduled public transportation service. An agreement shall provide for a fair arrangement the Secretary of Transportation con- siders appropriate to ensure that the assistance will not enable a governmental authority or an operator for a governmental authority to foreclose a private operator from providing intercity charter bus service if the pri- vate operator can provide the service. (2)181 VIOLATIONS.— (A) INVESTIGATIONS.—On receiving a com- plaint about a violation of the agreement re- quired under paragraph (1), the Secretary shall investigate and decide whether a violation has occurred. (B) ENFORCEMENT OF AGREEMENTS.—If the Secretary decides that a violation has occurred, made available under this chapter after September 30, 1989, may be obligated or expended to acquire a new bus model only if a bus of the model has been tested at the facility established under section 5318 of this title.”. Sec. 5(15) of Pub. L. No. 104- 287 struck “(except section 5307)” following “Amounts appro- priated…this chapter”. Sec. 317(a) of Pub. L. No. 100-17 added the bus testing requirement to the Federal Transit Act. 177 Sec. 813(a) of Pub. L. No. 93-383 inserted the original charter bus provision, § 3(f) of the Federal Transit Act. See also § 164(a) of the Federal-Aid Highway Act of 1973 (pt. II). 178 Sec. 3020(a) of Pub. L. No. 105-178 struck “BUYING AND OPERATING BUSES” and inserted “CONDITION ON CHARTER BUS TRANSPORTATION SERVICE”. 179 Sec. 3023(d)(1) of Pub. L. No. 109-59 amended this para- graph by inserting the heading. 180 Sec. 109(b) of Pub. L. No. 93-503 added “operation” to § 3(f) of the Federal Transit Act. 181 Sec. 3023(d)(2) of Pub. L. No. 109-59 struck para. (2) and inserted this paragraph. Before amendment, para. (2) read: (2) On receiving a complaint about a violation of an agree- ment, the Secretary of Transportation shall investigate and de- cide whether a violation has occurred. If the Secretary decides that a violation has occurred, the Secretary shall correct the vio- lation under terms of the agreement. In addition to a remedy specified in the agreement, the Secretary may bar a recipient under this subsection or an operator from receiving further as- sistance when the Secretary finds a continuing pattern of viola- tions of the agreement. Sec. 330(a) of Pub. L. No. 100-457 provides: “UMTA Charter Service Rule.—Notwithstanding any other provision of law or regulation, the Urban Mass Transportation Administration charter service rule (49 C.F.R. Part 604—charter service) and any subsequent Federal regulations governing charter service shall not apply to the Long Beach Public Transportation Com- pany.”.

58 the Secretary shall correct the violation under terms of the agreement. (C) ADDITIONAL REMEDIES.—In addition to any remedy specified in the agreement, the Secretary shall bar a recipient or an operator from receiving Federal transit assistance in an amount the Secretary considers appropriate if the Secretary finds a pattern of violations of the agreement. (e)182 BOND PROCEEDS ELIGIBLE FOR LOCAL SHARE.— (1) USE AS LOCAL MATCHING FUNDS.— Notwithstanding any other provision of law, a re- cipient of assistance under section 5307 or 5309 may use the proceeds from the issuance of revenue bonds as part of the local matching funds for a capi- tal project. (2) MAINTENANCE OF EFFORT.—The Secretary shall approve of the use of the proceeds from the is- suance of revenue bonds for the remainder of the net project cost only if the Secretary finds that the aggregate amount of financial support for public transportation in the urbanized area provided by the State and affected local governmental authori- ties during the next 3 fiscal years, as programmed in the State transportation improvement program under section 5304, is not less than the aggregate amount provided by the State and affected local governmental authorities in the urbanized area during the preceding 3 fiscal years. (3) DEBT SERVICE RESERVE.—The Secretary may reimburse an eligible recipient for deposits of bond proceeds in a debt service reserve that the recipient establishes pursuant to section 5302(a)(1)(K) from amounts made available to the recipient under sec- tion 5309. (4) PILOT PROGRAM FOR URBANIZED AREAS.— (A) IN GENERAL.—The Secretary shall estab- lish a pilot program to reimburse not to exceed 10 eligible recipients for deposits of bond pro- ceeds in a debt service reserve that the recipi- ent establishes pursuant to section 5302(a)(1)(K) from amounts made available to the recipient under section 5307. (B) REPORT.—Not later than July 31, 2008, the Secretary shall submit to the Committee on Banking, Housing, and Urban Affairs of the 182 Sec. 3023(e) of Public Law 109-59 amended this subsec- tion generally. Before amendment, the subsection read: BUS PASSENGER SEAT FUNCTIONAL SPECIFICATIONS. —The ini- tial advertising by a State or local governmental authority for bids to acquire buses using financial assistance under this chap- ter may include passenger seat functional specifications that are at least equal to performance specifications the Secretary of Transportation prescribes. The specifications shall be based on a finding by the State or local governmental authority of local re- quirements for safety, comfort, maintenance, and life cycle costs. Sec. 5(15) of Pub. L. No. 104-287 struck “(except section 5307)” following “financial assistance under this chapter”. Sec. 308(d) of Pub. L. No. 95-599 added this functional specification requirement to the Federal Transit Act. Senate and the Committee on Transportation and Infrastructure of the House of Representa- tives a report on the status and effectiveness of the pilot program established under subpara- graph (A). (f)183 SCHOOLBUS TRANSPORTATION.—(1)184 AGREEMENTS—Financial assistance under this chapter may be used for a capital project, or to operate public transportation equipment or a public transportation facility, only if the applicant agrees not to provide schoolbus transportation that exclusively transports students and school personnel in competition with a private schoolbus operator.185 This subsection does not apply— (A) to an applicant that operates a school system in the area to be served and a separate and exclusive schoolbus program for the school system; (B) unless a private schoolbus operator can provide adequate transportation that complies with applicable safety standards at reasonable rates; and (C) to a State or local governmental author- ity if it or a direct predecessor in interest from which it acquired the duty of transporting school children and personnel, and facilities to transport them, provided schoolbus transporta- tion at any time after November 25, 1973, but before November 26, 1974. (2)186 VIOLATIONS.—If the Secretary finds that an applicant, governmental authority, or publicly owned operator has violated the agreement re- quired under paragraph (1), the Secretary shall bar 183 Sec. 109(a) of Pub. L. No. 93-503 added the original schoolbus provision, § 3(g) of the Federal Transit Act. 184 Sec. 3023(f)(1) and (2) of Pub. L. No. 109-59 amended this paragraph by inserting the heading and realigning subparas. (A)–(C). 185 A district court has held that a private operator had an implied private cause of action under the federal transit legis- lation to challenge the eligibility of a federally-funded mass transportation provider to provide competing schoolbus ser- vices. Area Transp., Inc. v. Ettinger, 75 F. Supp. 2d 862 (N.D. Ill. 1999), aff’d, 219 F.3d 671 (7th Cir. 2000). In Bradford School Bus Transit v. Chicago Transit Auth., 537 F.2d 943 (7th Cir. 1976), cert. denied, 429 U.S. 1066 (1977), the Court of Ap- peals held that a private school bus operator claiming injury under this section could not seek judicial review of the federal transit agency’s actions to comply with the statute until it had exhausted its administrative remedies under agency complaint procedures established at 49 C.F.R. pt. 605. In Chicago Transit Auth. v. Adams, 607 F.2d 1284 (7th Cir. 1979); cert. denied, 446 U.S. 946 (1980), the Court of Appeals upheld the federal transit agency’s interpretation of this provi- sion that the term “school bus operations” does not include the daily school transportation of pupils. 186 Sec. 3023(f)(3) of Pub. L. No. 109-59 struck para. (2) and inserted this paragraph. Before amendment, the paragraph read: “An applicant violating an agreement under this subsec- tion may not receive other financial assistance under this chapter.”.

59 a recipient or an operator from receiving Federal transit assistance in an amount the Secretary con- siders appropriate. (g) BUYING BUSES UNDER OTHER LAWS.—Subsections (d) and (f) of this section apply to financial assistance to buy a bus under sections 133 and 142187 of title 23. However, subsection (f)(1)(C) of this section applies to sections 133 and 142 only if schoolbus transportation was provided at any time after August 12, 1972, but before August 13, 1973. (h) GRANT AND LOAN PROHIBITIONS.—A grant or loan may not be used to— (1) pay ordinary governmental or nonproject op- erating expenses; or (2) support a procurement that uses an exclu- sionary or discriminatory specification. (i)188 GOVERNMENT’S189 SHARE OF COSTS FOR CERTAIN PROJECTS.190— (1) EQUIPMENT FOR ADA AND CLEAN AIR ACT COMPLIANCE.—A grant for a project to be assisted under this chapter that involves acquiring vehicle- related equipment or facilities191 required by the Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.) or vehicle-related equipment or fa- cilities (including clean fuel or alternative fuel ve- hicle-related equipment or facilities) for purposes of complying with or maintaining compliance with the Clean Air Act, is for 90 percent of the net project cost of such equipment or facilities attributable to compliance with those Acts. The Secretary shall have discretion to determine, through practicable administrative procedures, the costs of such equipment or facilities attributable to compliance with those Acts. (2)192 CERTAIN STATE OWNED RAILROADS.—The Government share for financial assistance under 187 Sec. 3023(g) of Pub. L. No. 109-59 struck “103(e)(4) and 142(a) or (c)” throughout the subsection and inserted “133 and 142”. Sec. 1106(b) of Pub. L. No. 105-178 amended § 103; as amended § 103 no longer contains a subsec. (e)(4). 188 Sec. 3020(a) of Pub. L. No. 105-178 amended heading and text of this subsection generally. Before amendment, the text of subsec. (i) read: A Government grant for a project to be assisted under this chapter that involves acquiring vehicle-related equipment re- quired by the Clean Air Act (42 U.S.C. 7401 et seq.) or the Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.) is for 90 percent of the net project cost of the equipment that is attributable to complying with those Acts. The Secretary of Transportation, through practicable administrative procedures, may determine the costs attributable to that equipment. 189 Sec. 3023(h)(1) and (2) of Pub. L. No. 109-59 struck “GOVERNMENT” and inserted “GOVERNMENT’S”, and inserted the para. (1) designation and heading. 190 Sec. 3020 of Pub. L. No. 102-240 added § 12(m), the pre- codification version of this provision, to the Federal Transit Act. 191 Sec. 3023(h)(3) of Pub. L. No. 109-59 inserted “or facili- ties” after “equipment” throughout the paragraph. 192 Sec. 3023(h)(4) of Pub. L. No. 109-59 added this para- graph. this chapter to a State owned railroad (as defined in section 603 of the Rail Safety and Service Im- provement Act of 1982 (45 U.S.C. 1202)) shall be the same as the Government share under section 120(b) of title 23 for Federal-aid highway funds ap- portioned to the State in which the railroad oper- ates. (j) BUY AMERICA.193—(1) The Secretary of Transporta- tion may obligate an amount that may be appropriated to carry out this chapter for a project only if the steel, iron, and manufactured goods used in the project are produced in the United States. (2) The Secretary of Transportation may waive paragraph (1) of this subsection if the Secretary finds that— (A) applying paragraph (1) would be incon- sistent with the public interest; (B) the steel, iron, and goods produced in the United States are not produced in a sufficient and reasonably available amount or are not of a satisfactory quality; (C) when procuring rolling stock (including train control, communication, and traction power equipment) under this chapter— (i) the cost of components and subcom- ponents produced in the United States is more than 60 percent of the cost of all components of the rolling stock; and (ii) final assembly of the rolling stock has occurred in the United States; or (D) including domestic material will increase the cost of the overall project by more than 25 percent. (3)194 WRITTEN JUSTIFICATION FOR PUBLIC INTEREST WAIVER.—When issuing a waiver based on a public interest determination under paragraph (2)(A), the Secretary shall issue a detailed written justification as to why the waiver is in the public interest. The Secretary shall publish such justification in the Federal Register and provide the public with a rea- sonable period of time for notice and comment. (4) In this subsection, labor costs involved in final assembly are not included in calculating the cost of components. (5) The Secretary of Transportation may not make a waiver under paragraph (2) of this subsec- tion for goods produced in a foreign country if the Secretary, in consultation with the United States Trade Representative, decides that the government of that foreign country— (A) has an agreement with the United States Government under which the Secretary has waived the requirement of this subsection; and 193 Sec. 6(10)(A) of Pub. L. No. 103-429 struck “AMERICAN” and substituted “AMERICA”. 194 Sec. 3023(i)(1) of Pub. L. No. 109-59 redesignated paras. (3) through (7) as paras. (4) through (8), respectively, and in- serted this paragraph.

60 (B) has violated the agreement by discrimi- nating against goods to which this subsection applies that are produced in the United States and to which the agreement applies. (6) A person is ineligible under subpart 9.4 of chapter 1 of title 48, Code of Federal Regulations, to receive a contract or subcontract made with amounts authorized under the Federal Public Transportation Act of 2005195 if a court or depart- ment, agency, or instrumentality of the Govern- ment decides the person intentionally— (A) affixed a “Made in America” label, or a label with an inscription having the same meaning, to goods sold in or shipped to the United States that are used in a project to which this subsection applies but not produced in the United States; or (B) represented that goods described in clause (A) of this paragraph were produced in the United States. (7) The Secretary of Transportation may not im- pose any limitation on assistance provided under this chapter that restricts a State from imposing more stringent requirements than this subsection on the use of articles, materials, and supplies mined, produced, or manufactured in foreign coun- tries in projects carried out with that assistance or restricts a recipient of that assistance from comply- ing with those State-imposed requirements. (8)196 OPPORTUNITY TO CORRECT INADVERTENT ERROR.—The Secretary may allow a manufacturer or supplier of steel, iron, or manufactured goods to correct after bid opening any certification of non- compliance or failure to properly complete the certi- fication (but not including failure to sign the certifi- cation) under this subsection if such manufacturer or supplier attests under penalty of perjury that such manufacturer or supplier submitted an incor- rect certification as a result of an inadvertent or clerical error. The burden of establishing inadver- tent or clerical error is on the manufacturer or sup- plier. (9)197 ADMINISTRATIVE REVIEW.—A party adversely affected by an agency action under this subsection 195 Sec. 3023(i)(2) of Pub. L. No. 109-59 struck “Intermodal Surface Transportation Efficiency Act of 1991 (Pub. L. No. 102- 240, 105 Stat. 1914)” and inserted “Federal Public Transporta- tion Act of 2005”. 196 Sec. 3020(b) of Pub. L. No. 105-178 inserted the heading and amended this paragraph generally. Before amendment, the text read: Not later than January 1, 1995, the Secretary of Transporta- tion shall submit to Congress a report on purchases from foreign entities waived under paragraph (2) of this subsection in the fis- cal years ending September 30, 1992, and September 30, 1993. The report shall indicate the dollar value of items for which waivers were granted. 197 Sec. 3023(i)(3) of Pub. L. No. 109-59 inserted this para- graph. shall have the right to seek review under section 702 of title 5. (k)198 PARTICIPATION OF GOVERNMENTAL AGENCIES IN DESIGN AND DELIVERY OF TRANSPORTATION SERVICES.— To the extent feasible, governmental agencies and non- profit organizations that receive assistance from Gov- ernment sources (other than the Department of Trans- portation) for nonemergency transportation services— (1) shall participate and coordinate with recipi- ents of assistance under this chapter in the design and delivery of transportation services; and (2) shall be included in the planning for those services. (l)199 RELATIONSHIP TO OTHER LAWS.—Section 1001 of title 18 applies to a certificate, submission, or statement provided under this chapter. The Secretary may termi- nate financial assistance under this chapter and seek reimbursement directly, or by offsetting amounts, available under this chapter if the Secretary determines that a recipient of such financial assistance has made a false or fraudulent statement or related act in connec- tion with a Federal transit program. (m)200 PREAWARD AND POSTDELIVERY REVIEW OF ROLLING STOCK PURCHASES.— The Secretary of Trans- portation shall prescribe regulations requiring a prea- ward and postdelivery review of a grant under this chapter to buy rolling stock to ensure compliance with Government motor vehicle safety requirements, subsec- tion (j) of this section, and bid specifications require- ments of grant recipients under this chapter. Under this subsection, independent inspections and review are required, and a manufacturer certification is not suffi- cient. Rolling stock procurements of 20 vehicles or fewer made for the purpose of serving other than urbanized areas and urbanized areas with populations of 200,000 or fewer shall be subject to the same requirements as established for procurements of 10 or fewer buses under the post-delivery purchaser’s requirements certification process under section 663.37(c) of title 49, Code of Fed- eral Regulations.201 (n)202 SUBMISSION OF CERTIFICATIONS.—A certification required under this chapter and any additional certifi- cation or assurance required by law or regulation to be submitted to the Secretary may be consolidated into a single document to be submitted annually as part of a grant application under this chapter. The Secretary shall publish annually a list of all certifications re- 198 Sec. 3020(d) of Pub. L. No. 105-178 redesignated subsecs. (k) and (l) as subsecs. (l) and (m) and inserted this new subsec. (k). 199 Sec. 3023(j) of Pub. L. No. 109-59 amended this subsec- tion generally. Before amendment, the subsection read as fol- lows: “APPLICATION OF SECTION 135 OF TITLE 23.—The plan- ning and programming requirements of section 135 of title 23 apply to a grant made under sections 5307-5311 of this title.”. 200 Sec. 6(10)(B) of Pub. L. No. 103-429 added this subsec- tion, then designated subsec. (l). 201 Sec. 3023(k) of Pub. L. No. 109-59 added this sentence. 202 Sec. 3020(e) of Pub. L. No. 105-178 added this subsection.

61 quired under this chapter with the publication required under section 5336(e)(2). (o)203 GRANT REQUIREMENTS.—The grant requirements under sections 5307 and 5309 apply to any project un- der this chapter that receives any assistance or other financing under chapter 6 (other than section 609) of title 23.204 (p)205 ALTERNATIVE FUELING FACILITIES.—A recipient of assistance under this chapter may allow the inciden- tal use of federally funded alternative fueling facilities and equipment by nontransit public entities and private entities if— (1) the incidental use does not interfere with the recipient’s public transportation operations; (2) all costs related to the incidental use are fully recaptured by the recipient from the nontransit public entity or private entity; (3) the recipient uses revenues received from the incidental use in excess of costs for planning, capi- tal, and operating expenses that are incurred in providing public transportation; and (4) private entities pay all applicable excise taxes on fuel. SECTION 5324.206 SPECIAL PROVISIONS FOR CAPITAL PROJECTS. (a) RELOCATION AND REAL PROPERTY REQUIREMENTS.— The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (42 U.S.C. 4601 et seq.) shall apply to financial assistance for capital projects under this chapter. (b) CONSIDERATION OF ECONOMIC, SOCIAL, AND ENVIRONMENTAL INTERESTS.— (1) COOPERATION AND CONSULTATION.—In carry- ing out the policy of section 5301(e), the Secretary shall cooperate and consult with the Secretary of the Interior and the Administrator of the Environ- mental Protection Agency on each project that may have a substantial impact on the environment. (2) PUBLIC PARTICIPATION IN ENVIRONMENTAL REVIEWS.—In performing environmental reviews, the Secretary shall review each transcript of a hearing submitted under section 5323(b) to estab- lish that an adequate opportunity to present views was given to all parties having a significant eco- nomic, social, or environmental interest in the pro- ject, and that the project application includes a re- cord of— (A) the environmental impact of the pro- posal; 203 Sec. 3020(f) of Pub. L. No. 105-178 added this subsection. 204 Sec. 3023(l) of 109-59 struck “the Transportation Infra- structure Finance and Innovation Act of 1998” and inserted “chapter 6 (other than section 609) of title 23”. 205 Sec. 3023(m) of Pub. L. No. 109-59 added this subsection. 206 Sec. 3024(a) of Pub. L. No. 109-59 amended this section generally. See app. D for text of this section before amendment and legislative history. (B) adverse environmental effects that can- not be avoided; (C) alternatives to the proposal; and (D) irreversible and irretrievable impacts on the environment.207 (3) APPROVAL OF APPLICATIONS FOR ASSISTANCE.— (A) FINDINGS BY THE SECRETARY.—The Secre- tary may approve an application for financial assistance for a capital project in accordance with this chapter only if the Secretary makes written findings, after reviewing the applica- tion and the transcript of any hearing held be- fore a State or local governmental authority under section 5323(b), that— (i) an adequate opportunity to present views was given to all parties having a significant economic, social, or environ- mental interest; (ii) the preservation and enhancement of the environment and the interest of the community in which the project is located were considered; and (iii) no adverse environmental effect is likely to result from the project, or no fea- sible and prudent alternative to the effect exists and all reasonable steps have been taken to minimize the effect. (B) HEARING.—If a hearing has not been con- ducted or the Secretary decides that the record of the hearing is inadequate for making the findings required by this subsection, the Secre- tary shall conduct a hearing on an environ- mental issue raised by the application after giving adequate notice to interested persons. (C) AVAILABILITY OF FINDINGS.—The Secre- tary’s findings under subparagraph (A) shall be made a matter of public record.208 209 207 Two courts have held that a change in construction tech- niques does not require holding additional public hearings or the preparation of a supplemental environmental impact statement. Main-Amherst Business Ass’n v. Adams, 461 F. Supp. 1077 (W.D.N.Y. 1978) and Red Line Alert v. Adams, 14 E.R.C. 1417 (D. Ma. 1980). 208 Secs. 3 and 14 of the Federal Transit Act have been held to have incorporated the policies of the National Environ- mental Policy Act (NEPA), 42 U.S.C. § 4321, et seq. into the Urban Mass Transportation Act. Main-Amherst Business Ass’n v. Adams, supra. Environmental impact statements prepared in connection with UMTA projects have been upheld as ade- quate in the following cases: Phila. Council of Neighborhood Org. v. Coleman, 437 F. Supp. 1341 (E.D. Pa. 1977), aff'd w/ op., 578 F.2d 1375 (3d Cir. 1978); East 63rd St. Ass’n v. Cole- man, 414 F. Supp. 1318 (S.D.N.Y. 1976), aff’d, 7 ENVTL. L. REP. 20465; Inman Park Restoration, Inc. v. Urban Mass Transp. Admin., 414 F. Supp. 99 (N.D. Ga. 1975), aff'd sub nom. Save Our Sycamore v. Metropolitan Atlanta Rapid Tran- sit Auth., 576 F.2d 573 (5th Cir. 1978); Randolph Civic Ass’n v. Washington Metro. Area Transit Auth., 469 F. Supp. 968 (D.D.C. 1979); and Noe v. Metropolitan Atlanta Rapid Transit Auth., 485 F. Supp. 501 (N.D. Ga. 1980), aff'd, 644 F.2d 434 (5th Cir. 1981), reh’g denied, 650 F.2d 284 (5th Cir. 1981), cert.

62 (c) RAILROAD CORRIDOR PRESERVATION.— (1) IN GENERAL.—The Secretary may assist an applicant to acquire railroad right-of-way before the completion of the environmental reviews for any project that may use the right-of-way if the ac- quisition is otherwise permitted under Federal law. The Secretary may establish restrictions on such an acquisition as the Secretary determines to be necessary and appropriate. (2) ENVIRONMENTAL REVIEWS.—Railroad right-of- way acquired under this subsection may not be de- veloped in anticipation of the project until all re- quired environmental reviews for the project have been completed. SECTION 5325.210 CONTRACT REQUIREMENTS. (a) COMPETITION.—Recipients of assistance under this chapter shall conduct all procurement transactions in a manner that provides full and open competition as de- termined by the Secretary.211 (b) ARCHITECTURAL, ENGINEERING, AND DESIGN CONTRACTS.— (1) PROCEDURES FOR AWARDING CONTRACT.—A contract or requirement for program management, architectural engineering, construction manage- ment, a feasibility study, and preliminary engineer- ing, design, architectural, engineering, surveying, mapping, or related services for a project for which Federal assistance is provided under this chapter shall be awarded in the same way as a contract for architectural and engineering services is negotiated under chapter 11 of title 40 or an equivalent quali- fications-based requirement of a State. denied, 454 U.S. 1126. Two courts have held adequate a nega- tive declaration that UMTA funded projects would have no significant impact on the quality of the human environment within the meaning of NEPA. Residents Organized for Safer Env’t v. United States Dep’t of Transp., No. 79-3995 (E.D. Pa. 1980) and Township of Ridley v. Blanchette, 421 F. Supp. 435 (E.D. Pa. 1976). Contra, Pacific Legal Found. v. Burns, 9 E.R.C. 1399 (C.D. Ca. 1976). One court has held that the placement of advertising posters on the side of buses funded by the federal transit agency is a minor action not triggering NEPA's requirements. Naito v. Tri-County Transit District, 14 E.R.C. 1807 (D. Ore. 1980). 209 [Paras. 2 and 3 of this subsection] do not create private rights enforceable in private litigation. Rapid Transit Advo- cates v. Southern Cal. Rapid Transit District, 752 F.2d 373 (1985). 210 Sec. 3025 of Pub. L. No. 109-59 amended this section generally. See app. D for text of section before amendment and legislative history. 211 A disappointed bidder on a contract awarded by a grantee has no standing to sue the Secretary to enjoin concurrence in the award, and the Secretary's action in concurring therein is not judicially reviewable. Pullman, Inc. v. Volpe, 337 F. Supp. 432 (E.D. Pa. 1971). The same result on the standing issue was reached in Pullman, Inc. v. Adams, No. 77-1686 (D.D.C. memorandum opinion filed June 14, 1978). (2) EFFECT OF STATE LAWS.—Paragraph (1) does not apply to the extent a State has adopted by law, before the date of enactment of the Federal Public Transportation Act of 2005, an equivalent State qualifications-based requirement for contracting for architectural, engineering, and design services. (3) ADDITIONAL REQUIREMENTS.—When awarding a contract described in paragraph (1), recipients of assistance under this chapter shall comply with the following requirements: (A) PERFORMANCE OF AUDITS.—Any contract or subcontract awarded under this chapter shall be performed and audited in compliance with cost principles contained in part 31 of title 48, Code of Federal Regulations (commonly known as the Federal Acquisition Regulation). (B) INDIRECT COST RATES.—A recipient of funds under a contract or subcontract awarded under this chapter shall accept indirect cost rates established in accordance with the Fed- eral Acquisition Regulation for 1-year applica- ble accounting periods by a cognizant Federal or State government agency, if such rates are not currently under dispute. (C) APPLICATION OF RATES.—After a firm’s in- direct cost rates are accepted under subpara- graph (B), the recipient of the funds shall apply such rates for the purposes of contract estima- tion, negotiation, administration, reporting, and contract payment, and shall not be limited by administrative or de facto ceilings. (D) PRENOTIFICATION; CONFIDENTIALITY OF DATA.—A recipient requesting or using the cost and rate data described in subparagraph (C) shall notify any affected firm before such re- quest or use. Such data shall be confidential and shall not be accessible or provided by the group of agencies sharing cost data under this subparagraph, except by written permission of the audited firm. If prohibited by law, such cost and rate data shall not be disclosed under any circumstances. (c) EFFICIENT PROCUREMENT.—A recipient may award a procurement contract under this chapter to other than the lowest bidder if the award furthers an objec- tive consistent with the purposes of this chapter, includ- ing improved long-term operating efficiency and lower long-term costs. (d) DESIGN-BUILD PROJECTS.— (1) TERM DEFINED.—In this subsection, the term “design-build project”— (A) means a project under which a recipient enters into a contract with a seller, firm, or consortium of firms to design and build a pub- lic transportation system, or an operable seg- ment of such system, that meets specific per- formance criteria; and (B) may include an option to finance, or op- erate for a period of time, the system or seg- ment or any combination of designing, build-

63 ing, operating, or maintaining such system or segment. (2) FINANCIAL ASSISTANCE FOR CAPITAL COSTS.— Federal financial assistance under this chapter may be provided for the capital costs of a design- build project after the recipient complies with Gov- ernment requirements. (e) MULTIYEAR ROLLING STOCK.— (1) CONTRACTS.—A recipient procuring rolling stock with Government financial assistance under this chapter may make a multiyear contract to buy the rolling stock and replacement parts under which the recipient has an option to buy additional rolling stock or replacement parts for not more than 5 years after the date of the original contract. (2) COOPERATION AMONG RECIPIENTS.—The Secre- tary shall allow at least two recipients to act on a cooperative basis to procure rolling stock in compli- ance with this subsection and other Government procurement requirements. (f) ACQUIRING ROLLING STOCK.—A recipient of finan- cial assistance under this chapter may enter into a con- tract to expend that assistance to acquire rolling stock— (1) based on— (A) initial capital costs; or (B) performance, standardization, life cycle costs, and other factors; or (2) with a party selected through a competitive procurement process. (g) EXAMINATION OF RECORDS.—Upon request, the Secretary and the Comptroller General, or any of their representatives, shall have access to and the right to examine and inspect all records, documents, and pa- pers, including contracts, related to a project for which a grant is made under this chapter. (h) GRANT PROHIBITION.—A grant awarded under this chapter or the Federal Public Transportation Act of 2005 may not be used to support a procurement that uses an exclusionary or discriminatory specification. (i) BUS DEALER REQUIREMENTS.—No State law requir- ing buses to be purchased through in-State dealers shall apply to vehicles purchased with a grant under this chapter. (j) AWARDS TO RESPONSIBLE CONTRACTORS.— (1) IN GENERAL.—Federal financial assistance under this chapter may be provided for contracts only if a recipient awards such contracts to respon- sible contractors possessing the ability to success- fully perform under the terms and conditions of a proposed procurement. (2) CRITERIA.—Before making an award to a con- tractor under paragraph (1), a recipient shall con- sider— (A) the integrity of the contractor; (B) the contractor’s compliance with public policy; (C) the contractor’s past performance, includ- ing the performance reported in the Contractor Performance Assessment Reports required un- der section 5309(l)(2); and (D) the contractor’s financial and technical resources. [SECTION 5326. SPECIAL PROCUREMENTS.— REPEALED]212 SECTION 5327.213 PROJECT MANAGEMENT OVERSIGHT. (a) PROJECT MANAGEMENT PLAN REQUIREMENTS.—To receive United States Government financial assistance for a major capital project under this chapter or the National Capital Transportation Act of 1969 (Public Law 91-143, 83 Stat. 320), a recipient must prepare and carry out a project management plan approved by the Secretary of Transportation. The plan shall provide for— (1) adequate recipient staff organization with well-defined reporting relationships, statements of functional responsibilities, job descriptions, and job qualifications; (2) a budget covering the project management or- ganization, appropriate consultants, property ac- quisition, utility relocation, systems demonstration staff, audits, and miscellaneous payments the re- cipient may be prepared to justify; (3) a construction schedule for the project; (4) a document control procedure and recordkeep- ing system; (5) a change order procedure that includes a documented, systematic approach to the handling of construction change orders; (6) organizational structures, management skills, and staffing levels required throughout the con- struction phase; (7) quality control and quality assurance func- tions, procedures, and responsibilities for construc- tion, system installation, and integration of system components; (8) material testing policies and procedures; (9) internal plan implementation and reporting requirements; (10) criteria and procedures to be used for testing the operational system or its major components; (11) periodic updates of the plan, especially re- lated to project budget and project schedule, financ- ing, ridership estimates, and the status of local ef- forts to enhance ridership where ridership estimates partly depend on the success of those ef- forts; 212 Sec. 3025(b) of Pub. L. No. 109-59 repealed this subsec- tion. See app. D for text before repeal and legislative history. 213 Pub. L. No. 103-272 codified § 23 of the Federal Transit Act to constitute this section; see app. B; and omitted text as surplus or as executed in subsecs. (a), (c), and (e). Sec. 324(a) of Pub. L. No. 100-17 added § 23.

64 (12) the recipient's commitment to submit a pro- ject budget and project schedule to the Secretary each month; and (13) safety and security management.214 (b) PLAN APPROVAL.—(1) The Secretary shall approve a plan not later than 60 days after it is submitted. If the approval cannot be completed within 60 days, the Sec- retary shall notify the recipient, explain the reasons for the delay, and estimate the additional time that will be required. (2) The Secretary shall inform the recipient of the reasons when a plan is disapproved. (c)215 LIMITATIONS.— (1) LIMITATIONS ON USE OF AVAILABLE AMOUNTS.— Of the amounts made available to carry out this chapter for a fiscal year, the Secretary may use not more than the following amounts to make contracts for the activities described in paragraph (2): (A) 0.5 percent of amounts made available to carry out section 5305. (B) 0.75 percent of amounts made available to carry out section 5307. (C) 1 percent of amounts made available to carry out section 5309.216 (D) 0.5 percent of amounts made available to carry out section 5310. (E) 0.5 percent of amounts made available to carry out section 5311. (F) 0.5 percent of amounts made available to carry out section 5320. (2) ACTIVITIES.—Paragraph (1) shall apply to the following: (A) Activities to oversee the construction of a major project. (B) Activities to review and audit the safety and security, procurement, management, and financial compliance of a recipient or subre- cipient of funds under sections 5305, 5307, 5309, 5310, 5311, and 5320. (C) Activities to provide technical assistance to correct deficiencies identified in compliance reviews and audits carried out under this sec- tion. (3) LIMITATIONS ON APPLICABILITY.—Subsections (a), (b), and (e) do not apply to contracts under this section for activities described in paragraphs (2)(B) and (2)(C). (4) GOVERNMENT’S SHARE OF COSTS.—The Gov- ernment shall pay the entire cost of carrying out a contract under this subsection. 214 Sec. 3026(a) of Pub. L. No. 109-59 made formatting changes to paras. 11 and 12 and added this paragraph. 215 Sec. 3026(b) of Pub. L. No. 109-59 amended this subsec- tion generally. See app. D for text of subsection before amend- ment and legislative history. 216 Sec. 319 of Pub. L. No. 108-87 provided: “Beginning in fiscal year 2002 and thereafter, the Secretary may use up to 1 percent of the amounts made available to carry out 49 U.S.C. 5309 for oversight activities under 49 U.S.C. 5327.”. (5) AVAILABILITY OF CERTAIN FUNDS.—Beginning in fiscal year 2006, funds available under para- graph (1)(C) shall be made available to the Secre- tary before allocating the funds appropriated to carry out any project under a full funding grant agreement or project construction grant agreement. (d) ACCESS TO SITES AND RECORDS.—Each recipient of assistance under this chapter or section 14(b) of the National Capital Transportation Act of 1969 (Public Law 91-143, 83 Stat. 320), as added by section 2 of the National Capital Transportation Amendments of 1979 (Public Law 96-184, 93 Stat. 1320), shall provide the Secretary and a contractor the Secretary chooses under subsection (c) of this section with access to the construc- tion sites and records of the recipient when reasonably necessary. (e) REGULATIONS.—The Secretary shall prescribe regulations necessary to carry out this section. The regulations shall include— (1) a definition of “major capital project” for sub- section (c) of this section that excludes a project to acquire rolling stock or to maintain or rehabilitate a vehicle; and (2) a requirement that oversight begin during the preliminary engineering stage of a project, unless the Secretary finds it more appropriate to begin the oversight during another stage of the project, to maximize the transportation benefits and cost sav- ings associated with project management oversight. (f)217 FINANCIAL PLAN.—A recipient of financial assis- tance for a project under this chapter with an estimated total cost of $1,000,000,000 or more shall submit to the Secretary an annual financial plan for the project. The plan shall be based on detailed annual estimates of the cost to complete the remaining elements of the project and on reasonable assumptions, as determined by the Secretary, of future increases in the cost to complete the project. SECTION 5328.218 PROJECT REVIEW. (a)219 SCHEDULE.—(1) ALTERNATIVES ANALYSIS.—The Secretary shall cooperate with an applicant undertak- ing an alternatives analysis required by subsections (d) 217 Sec. 3024(b) of Pub. L. No. 105-178 inserted this subsec- tion. 218 Pub. L. No. 103-272 codified portions of § 3 of the Federal Transit Act to constitute this section; see app. B; omitted text as surplus in subsecs. (a), (c), and (e); and added text for clarity in subsec. (a). 219 Sec. 3011(a) of Pub. L. No. 102-240 inserted § 3(a)(6), the precodification version of this provision. Sec. 3011(b) of Pub. L. No. 102-240 provides: In the case of a project (including programs of interrelated projects) that, as of the date of enactment of this Act, has reached a particular stage of a project review under section 3(a)(6) of the Federal Transit Act, the timetables applicable to subsequent stages of project review contained in such section shall take effect on the date of enactment of this Act. Pub. L. No. 102-240 was enacted Dec. 18, 1991.

65 and (e) of section 5309 in the220 alternatives analysis and in preparing a draft environmental impact state- ment and shall approve the draft for circulation not later than 45 days after the applicant submits the draft to the Secretary. (2) ADVANCEMENT TO PRELIMINARY ENGINEERING STAGE—After221 the draft is circulated and not later than 30 days after the applicant selects a locally preferred alternative, the Secretary shall allow the project to advance to the preliminary engineering stage if the Secretary finds the project meets the requirements of subsection (d) or (e) of section 5309.222 (3) RECORD OF DECISION.—The Secretary223 shall issue a record of decision and allow a project to ad- vance to the final design stage224 not later than 120 days after the final environmental impact state- ment for the project is completed if the Secretary determines that the project meets the requirements of subsection (d) or (e) of section 5309.225 (4)226 FUNDING AGREEMENTS.—The Secretary shall enter into a full funding grant agreement or project construction grant agreement, as appropriate, be- tween the Government and the project sponsor if the Secretary determines that the project meets the 220 Sec. 3027(1) of Pub. L. No. 109-59 struck “(1) When the Secretary of Transportation allows a new fixed guideway pro- ject to advance into the alternatives analysis stage of project review, the Secretary shall cooperate with the applicant” and inserted “(1) ALTERNATIVES ANALYSIS.—The Secretary…in the”. 221 Sec. 3027(2)(A) of Pub. L. No. 109-59 struck “(2) After” and inserted “(2) ADVANCEMENT TO PRELIMINARY ENGINEERING STAGE—After”. 222 Sec. 3027(2)(B) of Pub. L. No. 109-59 struck “is consistent with section 5309(e)” and inserted “meets the requirements of subsection (d) or (e) of section 5309”. 223 Sec. 3027(3)(A) of Pub. L. No. 109-59 struck “(3) The Sec- retary” and inserted “(3) RECORD OF DECISION.—The Secre- tary”. 224 Sec. 3027(3)(B) of Pub. L. No. 109-59 struck “of construc- tion”. 225 Sec. 3027(3)(C) of Pub. L. No. 109-59 inserted “if the Sec- retary determines that the project meets the requirements of subsection (d) or (e) of section 5309”. 226 Sec. 3027(4) of Pub. L. No. 109-59 struck para. (4) and in- serted this new paragraph. Before amendment, the paragraph read: The Secretary shall make a full funding grant agreement un- der section 5309 of this title for a project not later than 120 days after the project enters the final design stage of construction. The agreement shall provide for a United States Government share of the construction cost at least equal to the Government share estimated in the Secretary's most recent report required under 5309(o)(1) or an update of the report unless the applicant requests otherwise. Sec. 3009(h)(3)(B) of Pub. L. No. 105-178, as amended by § 9009(h)(2), struck “full financing” and inserted “full funding”. Sec. 3009(h)(3)(C) of Pub. L. No. 105-178, as amended by § 9009(h)(3) of Pub. L. No. 105-206, struck “section 5309(m)(2) of this title” and inserted “5309(o)(1)”. requirements of subsection (d) or (e) of section 5309. (b)227 ALLOWED DELAYS.—(1) Advancement of a project under the time requirements of subsection (a) of this section may be delayed only— (A) for the time the applicant may request; or (B) during the time the Secretary finds, after reasonable notice and an opportunity for com- ment, that the applicant, for reasons attribut- able only to the applicant, has not complied substantially with the provisions of this chap- ter applicable to the project. (2) Not more than 10 days after imposing a delay under paragraph (1)(B) of this subsection, the Sec- retary shall give the applicant a written statement explaining the reasons for the delay and describing actions the applicant must take to end the delay. (3) At least once every 6 months, the Secretary shall report to the Committee on Transportation and Infrastructure228 of the House of Representa- tives and the Committee on Banking, Housing, and Urban Affairs of the Senate on each situation in which the Secretary has not met a time require- ment of subsection (a) of this section or delayed a time requirement under paragraph (1)(B) of this subsection. The report shall explain the reasons for the delay and include a plan for achieving timely completion of the Secretary's review. (c) PROGRAM OF INTERRELATED PROJECTS.—(1) In this subsection, a program of interrelated projects includes the following: (A) the New Jersey Urban Core Project (as defined in title III of the Intermodal Surface Transportation Efficiency Act of 1991 (Public Law 102-240, 105 Stat. 2087)). (B) the San Francisco Bay Area Rail Exten- sion Program, consisting of at least an exten- sion of the San Francisco Bay Area Rapid Transit District to the San Francisco Interna- tional Airport (Phase 1a to Colma and Phase 1b to San Francisco Airport), the Santa Clara County Transit District Tasman Corridor Pro- ject, a program element designated by a change to the Metropolitan Transportation Commis- sion Resolution No. 1876, and a program ele- ment financed completely with non- Government amounts, including the BART Warm Springs Extension, Dublin Extension, and West Pittsburg Extension. (C) the Los Angeles Metro Rail Minimum Operable Segment-3 Program, consisting of 7 stations and approximately 11.6 miles of heavy rail subway on the following lines: 227 Sec. 3011(a) of Pub. L. No. 102-240 inserted § 3(a)(7) and (8) of the Federal Transit Act, the precodification versions of subsecs. (b) and (c). 228 Sec. 5(9) of Pub. L. No. 104-287 struck “Public Works and Transportation” and substituted “Transportation and Infra- structure”.

66 (i) one line running west and northwest from the Hollywood/Vine station to the North Hollywood station, with 2 interme- diate stations. (ii) one line running west from the Wil- shire/Western station to the Pico/San Vicente station, with one intermediate sta- tion. (iii) the East Side Extension, consisting of an initial line of approximately 3 miles, with at least 2 stations, beginning at Un- ion Station and running generally east. (D) the Baltimore-Washington Transporta- tion Improvement Program, consisting of 3 ex- tensions of the Baltimore Light Rail to Hunt Valley, Penn Station, and Baltimore- Washington Airport, MARC extensions to Fre- derick and Waldorf, Maryland, and an exten- sion of the Washington Subway system to Largo, Maryland. (E) the Tri-County Metropolitan Transporta- tion District of Oregon229 Light Rail Program, consisting of the locally preferred alternative for the Westside Light Rail Project, including system related costs, contained in the Depart- ment of Transportation and Related Agencies Appropriations Act, 1991 (Public Law 101-516, 104 Stat. 2155), and defined in House Report 101-584,230 the Hillsboro extension to the Westside Light Rail Project contained in that Act,231 and the locally preferred alternative for the South/North Corridor Project.232 (F) the Queens Local/Express Connector Program, consisting of the locally preferred al- ternative for the connection of the 63d Street tunnel extension to the Queens Boulevard 229 Sec. 336(1) of Pub. L. No. 104-205 amended this subpara- graph by striking “Westside” after “Oregon”. 230 Sec. 336(2) of Pub. L. No. 104-205 amended this subpara- graph by striking “and” after “101-584”. 231 Sec. 328 of Pub. L. No. 101-516 states: Westside Light Rail.—Notwithstanding any other provision of law, the Secretary shall, with regard to the Discretionary Grants program of the Urban Mass Transportation Administra- tion, by September 30, 1991, issue a letter of intent and enter into a full funding agreement for the Westside Light Rail exten- sion, including systems related costs, between downtown Port- land, Oregon, and S.W. 185th Avenue. That full funding agree- ment shall provide for a future amendment under the same terms and conditions set forth above, for the extension known as the Hillsboro project which extends from S.W. 185th Avenue to the Transit Center in the City of Hillsboro, Oregon. Subject to a regional decision documented in the Hillsboro project's preferred alternatives report, the Secretary shall enter into an agreement with the Tri-County Metropolitan Transportation District in Portland, Oregon, to initiate preliminary engineering on the Hillsboro project, which shall proceed independent of and con- current with the project between downtown Portland, Oregon, and S.W. 185th Avenue. 232 Sec. 336(3) of Pub. L. No. 104-205 amended this subpara- graph by inserting “, and the locally preferred alternative for the South/North Corridor Project”. lines, the bell-mouth part of the connector that will allow for future access by commuter rail trains and other subway lines to the 63d Street tunnel extension, planning elements for con- necting the upper and lower levels to com- muter and subway lines in Long Island City, and planning elements for providing a connec- tor for commuter rail transportation to the East side of Manhattan and subway lines to the proposed Second Avenue subway. (G) the Dallas Area Rapid Transit Authority light rail elements of the New System Plan, consisting of the locally preferred alternative for the South Oak Cliff corridor, the South Oak Cliff corridor extension-Camp Wisdom, the West Oak Cliff corridor-Westmoreland, the North Central corridor-Park Lane, the North Central corridor-Richardson, Plano, and Gar- land extensions, the Pleasant Grove corridor- Buckner, and the Carrollton corridors-Farmers Branch and Las Colinas terminal. (H) other programs designated by law or the Secretary. (2) Consistent with the time requirements of sub- section (a) of this section or as otherwise provided by law, the Secretary shall make at least one full financing grant agreement for each program de- scribed in paragraph (1) of this subsection. The agreement shall include commitments to advance each of the applicant's program elements (in the program of interrelated projects) through the ap- propriate program review stages as provided in subsection (a) or as otherwise provided by law and to provide Government financing for each element. The agreement may be changed to include design and construction of a particular element. (3) When reviewing a project in a program of in- terrelated projects, the Secretary shall consider the local financial commitment, transportation effec- tiveness, and other assessment factors of all pro- gram elements to the extent consideration expe- dites carrying out the project. (4) Including a program element not financed by the Government in a program of interrelated pro- jects does not impose Government requirements that otherwise would not apply to the element. SECTION 5329.233 INVESTIGATIONS OF SAFETY HAZARDS AND SECURITY RISKS.234 (a) IN GENERAL.—The Secretary may conduct investi- gations into safety hazards and security risks associ- 233 Sec. 3028(a) of Pub. L. No. 109-59 amended this section generally, including the section title. See app. D for text of section before amendment and legislative history. 234 This section does not authorize the FTA to address mass transit safety hazards through general safety regulations such as the FTA's Nov. 21, 1988, Anti-Drug Regulation. Amalga- mated Transit Union v. Skinner, 894 F.2d 1362 (D.C. Cir. 1990).

67 ated with a condition in equipment, a facility, or an operation financed under this chapter to establish the nature and extent of the condition and how to elimi- nate, mitigate, or correct it. (b) SUBMISSION OF CORRECTIVE PLAN.—If the Secre- tary establishes that a safety hazard or security risk warrants further protective measures, the Secretary shall require the local governmental authority receiving amounts under this chapter to submit a plan for elimi- nating, mitigating, or correcting it. (c) WITHHOLDING FINANCIAL ASSISTANCE.—Financial assistance under this chapter, in an amount to be de- termined by the Secretary, may be withheld until a plan is approved and carried out. SECTION 5330.235 STATE SAFETY OVERSIGHT.236 (a) APPLICATION.—This section shall only apply to— (1) States that have rail fixed guideway public transportation systems that are not subject to regu- lation by the Federal Railroad Administration; and (2) States that are designing rail fixed guideway public transportation systems that will not be sub- ject to regulation by the Federal Railroad Admini- stration. (b) GENERAL AUTHORITY.—The Secretary of Transpor- tation may withhold not more than 5 percent of the amount required to be appropriated for use in a State or urbanized area in the State under section 5307 of this title for a fiscal year beginning after September 30, 1994, if the State in the prior fiscal year has not met the requirements of subsection (c) of this section and the Secretary decides the State is not making an ade- quate effort to comply with subsection (c). (c) STATE REQUIREMENTS.—A State meets the re- quirements of this section if the State— (1) establishes and is carrying out a safety pro- gram plan for each fixed guideway public transpor- tation system in the State that establishes at least safety requirements, lines of authority, levels of re- sponsibility and accountability, and methods of documentation for the system; and (2) designates a State authority as having re- sponsibility— (A) to require, review, approve, and monitor the carrying out of each plan; 235 Pub. L. No. 103-272 codified § 28 of the Federal Transit Act to constitute this section; see app. B; and omitted text as surplus in subsec. (e). Sec. 3029 of Pub. L. No. 102-240 added § 28. 236 Sec. 3029(a)(1) of Pub. L. No. 109-59 amended the section heading and subsec. (a). Before amendment, the section head- ing was “Withholding amounts for noncompliance with safety requirements” and subsec. (a) read: “This section applies only to States that have rail fixed guideway mass transportation systems not subject to regulation by the Federal Railroad Ad- ministration.”. Sec. 3029(a)(3) of Pub. L. No. 109-59 struck subsec. (f), which required the Secretary to issue regulations for complying with subsec. (c) by Dec. 18, 1992. (B) to investigate hazardous conditions and accidents on the systems; and (C) to require corrective action to correct or eliminate those conditions. (d) MULTISTATE INVOLVEMENT.—When more than one State is subject to this section in connection with a sin- gle public transportation authority, the affected States shall ensure uniform safety standards and enforcement or shall237 designate an entity (except the public trans- portation authority) to ensure uniform safety standards and enforcement and to meet the requirements of sub- section (c) of this section. (e) AVAILABILITY OF WITHHELD AMOUNTS.—(1) An amount withheld under subsection (b) of this section remains available for apportionment for use in the State until the end of the 2d fiscal year after the fiscal year for which the amount may be appropriated. (2) If a State meets the requirements of subsec- tion (c) of this section before the last day of the pe- riod for which an amount withheld under subsec- tion (b) of this section remains available under paragraph (1) of this subsection, the Secretary, on the first day on which the State meets the require- ments, shall apportion to the State the amount withheld that remains available for apportionment for use in the State. An amount apportioned under this paragraph remains available until the end of the 3d fiscal year after the fiscal year in which the amount is apportioned. An amount not obligated at the end of the 3-year period shall be apportioned for use in other States under section 5336 of this title. (3) If a State does not meet the requirements of subsection (c) of this section at the end of the period for which an amount withheld under subsection (b) of this section remains available under paragraph (1) of this subsection, the amount shall be appor- tioned for use in other States under section 5336 of this title.238 SECTION 5331.239 ALCOHOL AND CONTROLLED SUBSTANCES TESTING. (a) DEFINITIONS.—In this section— (1) “controlled substance” means any substance under section 102 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 802) whose use the Secretary of Transporta- tion decides has a risk to transportation safety. 237 Sec. 3029(a)(2) of Pub. L. No. 109-59 struck “may” and inserted “shall ensure uniform safety standards and enforce- ment or shall”. 238 Sec. 3029(a)(3) of Pub. L. No. 109-59 struck subsec. (f), which read: “(f) Regulations.—Not later than December 18, 1992, the Secretary shall prescribe regulations stating the requirements for complying with subsection (c) of this section.”. 239 Pub. L. No. 103-272 codified § 6 of Pub. L. No. 102-143 to constitute this section; see app. B; omitted text as surplus in subsecs. (a), (b), (d), (e), (f), and (g); and substituted text for clarity or consistency in subsecs. (a), (b), (d), and (f).

68 (2) “person” includes any entity organized or ex- isting under the laws of the United States, a State, territory, or possession of the United States, or a foreign country. (3) “public transportation” means any form of public transportation, except a form the Secretary decides is covered adequately, for employee alcohol and controlled substances testing purposes, under section 20140 or 31306240 of this title or section 2303a, 7101(i), or 7302(e) of title 46. The Secretary may also decide that a form of public transportation is covered adequately, for employee alcohol and controlled substances testing purposes, under the alcohol and controlled substance statutes or regula- tions of an agency within the Department of Trans- portation or the Coast Guard.241 (b)242 TESTING PROGRAM FOR PUBLIC243 TRANSPORTATION EMPLOYEES.—(1)(A) In the interest of public transporta- tion safety, the Secretary shall prescribe regulations that establish a program requiring public transporta- tion operations that receive financial assistance under section 5307, 5309, or 5311 of this title244 to conduct preemployment, reasonable suspicion, random, and post-accident testing of public transportation employees responsible for safety-sensitive functions (as decided by the Secretary) for the use of a controlled substance in violation of law or a United States Government regula- tion, and to conduct reasonable suspicion, random, and post-accident testing of such employees for the use of alcohol in violation of law or a United States Govern- ment regulation.245 The regulations shall permit such 240 Sec. 6(13) of Pub. L. No. 103-429 struck “subchapter III of chapter 201 or section 31306” and substituted “section 20140 or 31306”. 241 Sec. 3030(a) of Pub. L. No. 109-59 inserted the text be- ginning with “or section 2303a”. 242 Sec. 342 of Pub. L. No. 104-59 struck the previous head- ing and all through (b)(1)(A) and inserted this heading and the current (b)(1)(A). The previous provision read: In the interest of mass transportation safety, the Secretary of Transportation shall prescribe regulations not later than Octo- ber 28, 1992, that establish a program requiring mass transpor- tation operations that receive financial assistance under section 5307, 5309, or 5311 of this title or section 103(e)(4) of title 23 to conduct preemployment, reasonable suspicion, random, and post-accident testing of mass transportation employees respon- sible for safety-sensitive functions (as decided by the Secretary) for the use of alcohol or a controlled substance in violation of law or a United States Government regulation. 243 Sec. 3002(b)(3) of Pub. L. No. 109-59 struck “MASS” and inserted “PUBLIC”. 244 Sec. 3030(b) of Pub. L. No. 109-59 struck “or section 103(e)(4) of title 23” here and in subsec. (g). Sec. 103 of tit. 23 was amended generally by sec. 1106(b) of Pub. L. No. 105-178, and, as so amended, no longer contains a subsec. (e)(4). 245 The Ninth Circuit held that safety-related aspects of transit employees’ jobs justified subjecting them to random drug testing pursuant to § 5331 in Gonzalez v. Metro. Transp. Auth., 174 F.3d 1016 (9th Cir. 2003), cert. denied, 541 U.S. 974 (2004). Massachusetts Bay Transportation Authority policy of directly observed random drug and alcohol urinalysis testing instituted in compliance with the Omnibus Transportation operations to conduct preemployment testing of such employees for the use of alcohol. (B) When the Secretary of Transportation considers it appropriate in the interest of safety, the Secretary may prescribe regulations for conducting periodic recurring testing of public transportation employees responsible for safety-sensitive functions (as decided by the Secretary) for the use of alcohol or a controlled substance in violation of law or a Government regulation. (2) In prescribing regulations under this subsec- tion, the Secretary of Transportation— (A) shall require that post-accident testing of such a public transportation employee be con- ducted when loss of human life occurs in an ac- cident involving public transportation; and (B) may require that post-accident testing of such a public transportation employee be con- ducted when bodily injury or significant prop- erty damage occurs in any other serious acci- dent involving public transportation. (c) DISQUALIFICATIONS FOR USE.—(1) When the Secre- tary of Transportation considers it appropriate, the Sec- retary shall require disqualification for an established period of time or dismissal of any employee referred to in subsection (b)(1) of this section who is found— (A) to have used or been impaired by alcohol when on duty; or (B) to have used a controlled substance, whether or not on duty, except as allowed for medical purposes by law or regulation. (2) This section does not supersede any penalty applicable to a public transportation employee un- der another law. (d) TESTING AND LABORATORY REQUIREMENTS.—In car- rying out subsection (b) of this section, the Secretary of Transportation shall develop requirements that shall— (1) promote, to the maximum extent practicable, individual privacy in the collection of specimens; (2) for laboratories and testing procedures for controlled substances, incorporate the Department of Health and Human Services scientific and tech- nical guidelines dated April 11, 1988, and any amendments to those guidelines, including manda- tory guidelines establishing— (A) comprehensive standards for every as- pect of laboratory controlled substances testing Employee Testing Act held under the circumstances not to violate Fourth Amendment. On balance the intrusive testing was justified by the compelling governmental interest in ensur- ing testing of safety-sensitive employees was accurate and effective. Byrne v. Mass. Bay Transp. Authority, 196 F. Supp. 2d 77 (D. Mass 2002). Because city transit car cleaner might be called upon to perform safety-sensitive functions, he fell within federal definition of “safety-sensitive employee” and so had to submit to all drug and alcohol testing required by Omnibus Transportation Employee Testing Act. United Pub. Employees v. City and County of S.F., 62 Cal. Rptr. 2d 440 (Cal. App. 1 Dist. 1997).

69 and laboratory procedures to be applied in car- rying out this section, including standards re- quiring the use of the best available technology to ensure the complete reliability and accuracy of controlled substances tests and strict proce- dures governing the chain of custody of speci- mens collected for controlled substances test- ing; (B) the minimum list of controlled sub- stances for which individuals may be tested; and (C) appropriate standards and procedures for periodic review of laboratories and criteria for certification and revocation of certification of laboratories to perform controlled substances testing in carrying out this section; (3) require that a laboratory involved in con- trolled substances testing under this section have the capability and facility, at the laboratory, of per- forming screening and confirmation tests; (4) provide that all tests indicating the use of al- cohol or a controlled substance in violation of law or a Government regulation be confirmed by a scien- tifically recognized method of testing capable of providing quantitative information about alcohol or a controlled substance; (5) provide that each specimen be subdivided, se- cured, and labeled in the presence of the tested in- dividual and that a part of the specimen be re- tained in a secure manner to prevent the possibility of tampering, so that if the individual's confirma- tion test results are positive the individual has an opportunity to have the retained part tested by a 2d confirmation test done independently at another certified laboratory if the individual requests the 2d confirmation test not later than 3 days after being advised of the results of the first confirmation test; (6) ensure appropriate safeguards for testing to detect and quantify alcohol in breath and body fluid samples, including urine and blood, through the development of regulations that may be necessary and in consultation with the Secretary of Health and Human Services; (7) provide for the confidentiality of test results and medical information (except information about alcohol or a controlled substance) of employees, ex- cept that this clause does not prevent the use of test results for the orderly imposition of appropri- ate sanctions under this section; and (8) ensure that employees are selected for tests by nondiscriminatory and impartial methods, so that no employee is harassed by being treated dif- ferently from other employees in similar circum- stances. (e) REHABILITATION.—The Secretary of Transporta- tion shall prescribe regulations establishing require- ments for rehabilitation programs that provide for the identification and opportunity for treatment of any pub- lic transportation employee referred to in subsection (b)(1) of this section who is found to have used alcohol or a controlled substance in violation of law or a Gov- ernment regulation. The Secretary shall decide on the circumstances under which employees shall be required to participate in a program. This subsection does not prevent a public transportation operation from estab- lishing a program under this section in cooperation with another public transportation operation. (f)246 RELATIONSHIP TO OTHER LAWS, REGULATIONS, STANDARDS, AND ORDERS.—(1) A State or local govern- ment may not prescribe, issue, or continue in effect a law, regulation, standard, or order that is inconsistent with regulations prescribed under this section. How- ever, a regulation prescribed under this section does not preempt a State criminal law that imposes sanctions for reckless conduct leading to loss of life, injury, or dam- age to property. (2) In prescribing regulations under this section, the Secretary of Transportation— (A) shall establish only requirements that are consistent with international obligations of the United States; and (B) shall consider applicable laws and regu- lations of foreign countries. (g) INELIGIBILITY FOR ASSISTANCE.—A person is not eligible for financial assistance under section 5307, 5309, or 5311 of this title if the person is required, un- der regulations the Secretary of Transportation pre- scribes under this section, to establish a program of alcohol and controlled substances testing and does not establish the program. SECTION 5332.247 NONDISCRIMINATION. (a) DEFINITION.—In this section, “person” includes a governmental authority, political subdivision, author- ity, legal representative, trust, unincorporated organi- zation, trustee, trustee in bankruptcy, and receiver. 246 Sec. 3030(c) of Pub. L. No. 109-59 struck para. (3), which read: “This section does not prevent the Secretary of Transpor- tation from continuing in effect, amending, or further supple- menting a regulation prescribed before October 28, 1991, gov- erning the use of alcohol or a controlled substance by mass transportation employees.”. 247 Pub. L. No. 103-272 codified § 19 of the Federal Transit Act to constitute this section; see app. B; omitted text as sur- plus in subsecs. (a), (c), (d), (e), and (f); and substituted text in subsecs. (b) and (d). Sec. 314 of Pub. L. No. 95-599 added § 19. In Jones v. Niagara Frontier Transp. Auth., 524 F. Supp. 233, 238 (W.D.N.Y. 1981), the District Court stated that “the paramount thrust of [Section 19 as it relates to DOT's Minority Business Enterprise regulations] is to enable minority contrac- tors to ‘stick their foot in the door’ of the often exclusive en- clave of contracting and construction work.” Neither the Airport and Airway Redevelopment Act, the Railroad Revitalization and Regulatory Reform Act, the Urban Mass Transportation Act, nor the statute prohibiting discrimi- nation on account of sex in a highway program authorized the Secretary of Transportation’s minority business enterprise regulations. M.C. West, Inc. v. Lewis, 522 F. Supp. 338 (M.D. Tenn. 1981).

70 (b) PROHIBITIONS.—A person may not be excluded from participating in, denied a benefit of, or discrimi- nated against under, a project, program, or activity re- ceiving financial assistance under this chapter because of race, color, creed, national origin, sex, or age. (c) COMPLIANCE.—(1) The Secretary of Transportation shall take affirmative action to ensure compliance with subsection (b) of this section. (2) When the Secretary decides that a person re- ceiving financial assistance under this chapter is not complying with subsection (b) of this section, a civil rights law of the United States, or a regulation or order under that law, the Secretary shall notify the person of the decision and require action be taken to ensure compliance with subsection (b). (d) AUTHORITY OF SECRETARY FOR NONCOMPLIANCE.—If a person does not comply with subsection (b) of this section within a reasonable time after receiving notice, the Secretary shall— (1) direct that no further financial assistance of the United States Government under this chapter be provided to the person; (2) refer the matter to the Attorney General with a recommendation that a civil action be brought; (3) proceed under title VI of the Civil Rights Act of 1964248 (42 U.S.C. 2000d et seq.); and (4) take any other action provided by law. (e) CIVIL ACTIONS BY ATTORNEY GENERAL.—The Attor- ney General may bring a civil action for appropriate relief when— (1) a matter is referred to the Attorney General under subsection (d)(2) of this section; or (2) the Attorney General believes a person is en- gaged in a pattern or practice in violation of this section. (f) APPLICATION AND RELATIONSHIP TO OTHER LAWS.— This section applies to an employment or business op- portunity and is in addition to title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.). SECTION 5333.249 LABOR STANDARDS. (a) PREVAILING WAGES REQUIREMENT.—The Secretary of Transportation shall ensure that laborers and me- chanics employed by contractors and subcontractors in construction work financed with a grant or loan under this chapter be paid wages not less than those prevail- ing on similar construction in the locality, as deter- mined by the Secretary of Labor under sections 3141- 3144, 3146, and 3147 of title 40.250 The Secretary of Transportation may approve a grant or loan only after 248 Pub. L. No. 88-352. 249 Pub. L. No. 103-272 codified § 13 of the Federal Transit Act to constitute this section; see app. B; omitted text as sur- plus in subsecs. (a) and (b); substituted text in subsecs. (a) and (b); and added text in subsecs. (a) and (b). 250 Sec. 3(n)(3) of Pub. L. No. 107-217 struck “the Act of March 3, 1931 (known as the Davis-Bacon Act) (40 U.S.C. 276a–276a-5)” and inserted “sections 3141–3144, 3146, and 3147 of title 40”. being assured that required labor standards will be maintained on the construction work.251 For a labor standard under this subsection, the Secretary of Labor has the same duties and powers stated in Reorganiza- tion Plan No. 14 of 1950 (eff. May 24, 1950, 64 Stat. 1267) and section 3145 of title 40.252 (b) EMPLOYEE PROTECTIVE ARRANGEMENTS. 253 254 255— (1) As a condition of financial assistance under sections 251 If a question arises as to which wage rate schedule pub- lished by the Department of Labor applies to an FTA-assisted construction project, the matter must be referred to the Secre- tary of Labor for decision. North Ga. Bldg. and Construction Trades Council v. United States Dep’t of Transp., 399 F. Supp. 58 (N.D. Ga. 1975). If federal funding is anticipated, the Davis- Bacon Act applies, notwithstanding the fact that it has not been formally applied for or approved. North Ga. Bldg. and Construction Trades Council v. United States Dep’t of Transp., 621 F.2d 697 (5th Cir. 1980). Questions about the applicability of Davis-Bacon requirements to a specific portion of a recipi- ents' public work are resolved by the U.S. Department of La- bor. North Ga. Bldg. and Construction Trades Council v. Met- ropolitan Atlanta Rapid Transit Auth., 1982 WL 2001 (N.D. Ga. 1982). In a 2-1 decision, the Department of Labor Wage Appeals Board held that Davis-Bacon requirements did not apply to a section of the Atlanta subway constructed entirely with local funds. In the Matter of MARTA Contracts CN-710 & CN 730 and Options thereto, No. Ga. Bldg. Trades Council, WB Case No. 83-9, May 1984. 252 Sec. 3(n)(3) of Pub. L. No. 107-217 struck “section 2 of the Act of June 13, 1934 (40 U.S.C. 276c)” and inserted “section 3145 of title 40”. 253 Claim that agreement under which governmental entity that receives federal funding under federal transit legislation arranges for transit employee protection has been violated does not state federal cause of action. City of Beloit v. Local 643 of American Fed’n of State, County and Mun. Employees, AFL- CIO, 248 F.3d 650 (7th Cir. 2001). In Jackson Transit Auth. v. Local Division 1258, A.T.U., 457 U.S. 15 (1982), the Supreme Court held that the employee protective arrangements provision does not provide unions with a federal cause of action for alleged breaches of the em- ployee protective arrangements provision and collective bar- gaining agreements. Instead, such breaches must be resolved in state court. This decision resolved a conflict among the Cir- cuit Courts of Appeals and reversed five Circuit Courts that had held the employee protective arrangements provision to provide a federal cause of action. The U.S. Court of Appeals for the First Circuit held in Local Division 589, A.T.U. v. Commonwealth of Mass., 666 F.2d 618 (1st Cir. 1981), cert. denied, 457 U.S. 1117 (1982), that where there is a conflict between an employee protective arrange- ments certification or agreement and a later enacted state statue, the state statute prevails. This opinion, incidentally, contains an extensive discussion of the employee protective arrangements’ legislative history. 254 This subsection does not infringe upon the powers re- served to the States under the Tenth Amendment to the United States Constitution, as a State or local body is free to avoid the conditions required by the subsection by refusing to accept the offer of federal assistance. City of Macon v. Mar- shall, 439 F. Supp. 1209 (M.D. Ga. 1977).

71 5307-5312, 5316, 5318, 5323(a)(1), 5323(b), 5323(d), 5328, 5337, and 5338(b)256 257 of this title, the interests of employees affected by the assistance shall be protected under arrangements the Secretary of Labor258 concludes are fair and equitable. The agreement granting the as- sistance under sections 5307-5312, 5318(d), 5323(a)(1), (b), (d), and (e), 5328, 5337, and 5338(b) shall specify the arrangements. (2) Arrangements under this subsection shall include provisions that may be necessary for— (A) the preservation of rights, privileges, and benefits (including continuation of pension rights and benefits) under existing collective bargaining agreements or otherwise; (B) the continuation of collective bargaining rights; (C) the protection of individual employees against a worsening of their positions related to employment; (D) assurances of employment to employees of acquired public transportation systems; (E) assurances of priority of reemployment of employees whose employment is ended or who are laid off; and 255 The requirement that labor protective agreements pro- vide for "the continuation of collective bargaining rights" means, at a minimum, that transit workers are entitled to good faith negotiations with their employers over wages, hours, and other terms and conditions of employment. Although transit workers are not entitled to any particular form of arbitration in the event of an impasse, this subsection does require some process, such as mandatory fact-finding with recommenda- tions, that avoids unilateral control by an employer over man- datory subjects of collective bargaining. Amalgamated Transit Union v. Donovan, 767 F.2d 939 (D.C. Cir. 1985), cert. denied, 475 U.S. 1046 (1986). 256 Sec. 3031(1) of Pub. L. No. 109-59 struck “5318(d), 5323(a)(1), (b), (d), and (e), 5328, 5337, and 5338(b)” here and in the second sentence and inserted “5316, 5318, 5323(a)(1), 5323(b), 5323(d), 5328, 5337, and 5338(b)”. Sec. 3029(b)(9) of Pub. L. No. 105-178 struck “5338(j)(5)” and inserted “5338(b)” here and in the second sentence of this paragraph. 257 Sec. 2(b)(2) of Pub. L. No. 89-562 amended § 13(c) of the Federal Transit Act by substituting the words “under section 3 of the Act” for the words “under this Act.” Subsequently, Chairmen of the Committees on Banking and Currency of the House and of the Senate inserted in the Congressional Record statements indicating that there was no intent to exclude the urban mass transportation demonstration program under § 6(a) from the labor-protective requirements of § 13(c). See CONG. REC., 28,344 (Oct. 20, 1966), and 28,826 (Oct. 22, 1966). 258 The determination of the Secretary of Labor to certify that a labor protective agreement is “fair and equitable” within the meaning of this section is judicially reviewable. Amalga- mated Transit Union v. Donovan, supra. See also Amalga- mated Transit Union v. Brock, 809 F.2d 909 (D.C. Cir. 1987) (holding that the Secretary of Labor exceeded his statutory authority by issuing conditional certifications.) But see Kendler v. Wirtz, 388 F.2d 381 (3d Cir. 1968) (holding that the deter- mination of the Secretary of Labor as to what arrangements are “fair and equitable” involves administrative judgment, discretion and expertise, and is not judicially reviewable). (F) paid training or retraining programs. (3) Arrangements under this subsection shall provide benefits at least equal to benefits estab- lished under section 11326259 of this title. (4)260 Fair and equitable arrangements to protect the interests of employees utilized by the Secre- tary of Labor for assistance to purchase like-kind equipment or facilities, and grant amendments which do not materially revise or amend existing assistance agreements, shall be certified without referral. (5) When the Secretary is called upon to issue fair and equitable determinations involving assur- ances of employment when one private transit bus service contractor replaces another through com- petitive bidding, such decisions shall be based on the principles set forth in the Department of La- bor’s decision of September 21, 1994, as clarified by the supplemental ruling of November 7, 1994, with respect to grant NV–90–X021. This para- graph shall not serve as a basis for objections un- der section 215.3(d) of title 29, Code of Federal Regulations. SECTION 5334.261 ADMINISTRATIVE PROVISIONS.262 (a) GENERAL AUTHORITY.—In carrying out this chap- ter, the Secretary of Transportation may— (1) prescribe terms for a project under sections 5307 and 5309-5311 of this title (except terms the Secretary of Labor prescribes under section 5333(b) of this title)263; (2) sue and be sued;264 259 Sec. 308(e) of Pub. L. No. 104-88 struck “11347” and in- serted “11326”. 260 Sec. 3031(2) of Pub. L. No. 109-59 inserted paras. (4) and (5). 261 Pub. L. No. 103-272 codified § 1(a)(1) of the Reorganiza- tion Plan No. 2 of 1968, § 2(a)(1) of Pub. L. No. 89-562, § 20(a) of Pub. L. No. 90-19, § 8(k) of the Federal Transit Act, and portions of §§ 8 and 12 of the Federal Transit Act to constitute this section; see app. B; omitted text in subsecs. (a), (b), (c), (e), (f), (g), (i); substituted text in subsecs. (a), (b), (c), (d), (e), (f), (i), and (j); translated text in subsec. (i); and added text in subsecs. (a) and (e). 262 Sec. 3025(b)(1) of Pub. L. No. 105-178 inserted “provi- sions”. 263 In McDonald v. Stockton Metro. Transit District, 36 Cal. App. 3d 436, 111 Cal. Rptr. 637 (Cal. App. 3d Dist. 1973), where a transit district had contracted, inter alia, to install bus stop shelters as part of a capital grant project, it was held that where the district had refused to install such shelters as part of the completed project, the Department of Transportation has authority under the UMT Act of 1964 to either withhold fur- ther financial assistance, or to bring suit for damages or for specific performance to enforce the grant contract. 264 Although this provision evinced waiver of sovereign im- munity, it did not constitute express creation of private right of action. Town of Secaucus, supra.

72 (3) foreclose on property or bring a civil action to protect or enforce a right conferred on the Secre- tary of Transportation by law or agreement; (4) buy property related to a loan under this chapter; (5) agree to pay an annual amount in place of a State or local tax on real property acquired or owned under this chapter; (6) sell, exchange, or lease property, a security, or an obligation; (7) obtain loss insurance for property and assets the Secretary of Transportation holds; (8) consent to a modification in an agreement un- der this chapter; (9) include in an agreement or instrument under this chapter a covenant or term the Secretary of Transportation considers necessary to carry out this chapter; (10)265 collect fees to cover the costs of training or conferences, including costs of promotional materi- als, sponsored by the Federal Transit Administra- tion to promote public transportation and credit amounts collected to the appropriation concerned; and (11)266 issue regulations as necessary to carry out the purposes of this chapter. (b)267 PROHIBITIONS AGAINST REGULATING OPERATIONS AND CHARGES.268— (1) IN GENERAL.—Except for purposes of national defense or in the event of a national or regional emergency, the Secretary may not regulate the op- eration, routes, or schedules of a public transporta- tion system for which a grant is made under this chapter, nor may the Secretary regulate the rates, fares, tolls, rentals, or other charges prescribed by any provider of public transportation. 265 Sec. 3025(a) of Pub. L. No. 105-178 added para. (10). 266 Sec. 3032(1) of Pub. L. No. 109-59 made formatting changes to paras. (9) and (10) and added para. (11). 267 Sec. 3032(2)–(4) of Pub. L. No. 109-59 struck subsec. (i), redesignated subsecs. (b) through (h) as subsecs. (c) through (i), respectively, and inserted this subsec. (b). Before redesigna- tion, subsec. (i) read: (i) AUTHORITY OF SECRETARY OF HOUSING AND URBAN DEVELOPMENT.—The Secretary of Housing and Urban Develop- ment shall— (1) carry out section 5312(a) and (b)(1) of this title related to— (A) urban transportation systems and planned development of urban areas; and (B) the role of transportation planning in overall urban plan- ning; and (2) advise and assist the Secretary of Transportation in mak- ing findings under section 5323(a)(1)(A) of this title. 268 In Naito v. Tri-County Transit District, 14 E.R.C. 1807 (D. Ore. 1980), the District Court dismissed an action challeng- ing the federal transit agency’s failure to regulate local adver- tising on Portland, Oregon, buses, citing language in Pullman v. Volpe, 337 F. Supp. 432, 439 (E.D. Pa. 1971), that the UMT Act “emphasizes local solutions” to such problems. (2) LIMITATION ON STATUTORY CONSTRUCTION.— Nothing in this subsection shall be construed to prevent the Secretary from requiring a recipient of funds under this chapter to comply with the terms and conditions of its Federal assistance agreement. (C) PROCEDURES FOR PRESCRIBING REGULATIONS.269— (1) The Secretary of Transportation shall prepare an agenda listing all areas in which the Secretary intends to propose regulations governing activities under this chapter within the following 12 months. The Secretary shall publish the proposed agenda in the Federal Regis- ter as part of the Secretary's semiannual regulatory agenda that lists regulatory activities of the Federal Transit Administration. The Secretary shall submit the agenda to the Committees on Transportation and Infra- structure270 and Appropriations of the House of Repre- sentatives and the Committees on Banking, Housing, and Urban Affairs and Appropriations of the Senate on the day the agenda is published. (2) Except for emergency regulations, the Secre- tary of Transportation shall give interested parties at least 60 days to participate in a regulatory pro- ceeding under this chapter by submitting written information, views, or arguments, with or without an oral presentation, except when the Secretary for good cause finds that public notice and comment are unnecessary because of the routine nature or insignificant impact of the regulation or that an emergency regulation should be issued. The Secre- tary may extend the 60-day period if the Secretary decides the period is insufficient to allow diligent individuals to prepare comments or that other cir- cumstances justify an extension. (3) An emergency regulation ends 120 days after it is issued. (4)271 The Secretary of Transportation shall com- ply with this section (except subsection (i)) and sec- tions 5318(e), 5323(a)(2), 5325(a), 5325(b), and 5325(f) when proposing or carrying out a regulation governing an activity under this chapter, except for a routine matter or a matter with no significant impact. 269 Sec. 318(a) of Pub. L. No. 100-17 added the provision on rulemaking procedures to the Federal Transit Act. 270 Sec. 5(9) of Pub. L. No. 104-287 struck “Public Works and Transportation” and substituted “Transportation and Infra- structure”. 271 Sec. 3032(5) of Pub. L. No. 109-59 struck para. (4) and in- serted this paragraph. Before amendment, para. (4) read: The Secretary of Transportation shall comply with this sec- tion (except subsections (h) and (i)) and sections 5323(a)(2), 5323(c), 5323(e), 5324(c), 5325(a), 5325(b), 5326(c), and 5326(d) when proposing or carrying out a regulation governing an activ- ity under this chapter, except for a routine matter or a matter with no significant impact. Sec. 3023(c) of Pub. L. No. 105-178 struck “5323(a)(2), (c) and (e), 5324(c), and 5325 of this title” and inserted “5323(a)(2), 5323(c), 5323(e), 5324(c), 5325(a), 5325(b), 5326(c), and 5326(d)”. Sec. 3017 of Pub. L. No. 102-240 added this limitation to the Federal Transit Act.

73 (d) BUDGET PROGRAM AND SET OF ACCOUNTS.—The Secretary of Transportation shall— (1) submit each year a budget program as pro- vided in section 9103 of title 31; and (2) maintain a set of accounts for272 audit under chapter 35 of title 31. (e) DEPOSITORY AND AVAILABILITY OF AMOUNTS.—The Secretary of Transportation shall deposit amounts made available to the Secretary under this chapter in a checking account in the Treasury. Receipts, assets, and amounts obtained or held by the Secretary to carry out this chapter are available for administrative expenses to carry out this chapter. (f) BINDING EFFECT OF FINANCIAL TRANSACTION.—A fi- nancial transaction of the Secretary of Transportation under this chapter and a related voucher are binding on all officers and employees of the United States Govern- ment. (g) DEALING WITH ACQUIRED PROPERTY.— Notwithstanding another law related to the Govern- ment acquiring, using, or disposing of real property, the Secretary of Transportation may deal with property acquired under subsection (a)(3) or (4) of this section in any way. However, this subsection does not— (1) deprive a State or political subdivision of a State of jurisdiction of the property; or (2) impair the civil rights, under the laws of a State or political subdivision of a State, of an in- habitant of the property. (h) TRANSFER OF ASSETS NO LONGER NEEDED.273—(1) If a recipient of assistance under this chapter decides an asset acquired under this chapter at least in part with that assistance is no longer needed for the purpose for which it was acquired, the Secretary of Transportation may authorize the recipient to transfer the asset to a local governmental authority to be used for a public purpose with no further obligation to the Government. The Secretary may authorize a transfer for a public purpose other than public transportation only if the Secretary decides— (A) the asset will remain in public use for at least 5 years after the date the asset is trans- ferred; (B) there is no purpose eligible for assistance under this chapter for which the asset should be used; (C) the overall benefit of allowing the trans- fer is greater than the interest of the Govern- ment in liquidation and return of the financial interest of the Government in the asset, after considering fair market value and other fac- tors; and (D) through an appropriate screening or sur- vey process, that there is no interest in acquir- 272 Sec. 127(a) of Pub. L. No. 104-316 struck “the Comptrol- ler General shall” and inserted “for”. 273 Sec. 3018 of Pub. L. No. 102-240 added the transfer of capital asset provision, § 12(k), to the Federal Transit Act. ing the asset for Government use if the asset is a facility or land. (2) A decision under paragraph (1) of this section must be in writing and include the reason for the decision. (3) This subsection is in addition to another law related to using and disposing of a facility or equipment under an assistance agreement. (4)274 PROCEEDS FROM THE SALE OF TRANSIT ASSETS.— (A) IN GENERAL.—When real property, equipment, or supplies acquired with assis- tance under this chapter are no longer needed for public transportation purposes as deter- mined under the applicable assistance agree- ment, the Secretary may authorize the sale, transfer, or lease of the assets under conditions determined by the Secretary and subject to the requirements of this subsection. (B) USE.—The net income from asset sales, uses, or leases (including lease renewals) under this subsection shall be used by the recipient to reduce the gross project cost of other capital projects carried out under this chapter. (C) RELATIONSHIP TO OTHER AUTHORITY.—The authority of the Secretary under this subsec- tion is in addition to existing authorities con- trolling allocation or use of recipient income otherwise permissible in law or regulation in effect prior to the date of enactment of this paragraph. (i) TRANSFER OF AMOUNTS AND NON-GOVERNMENT SHARE.—(1) Amounts made available for a public trans- portation project under title 23 shall be transferred to and administered by the Secretary of Transportation under this chapter. Amounts made available for a highway project under this chapter shall be transferred to and administered by the Secretary under title 23. (2) The provisions of title 23 related to the non- Government share apply to amounts under title 23 used for public transportation projects. The provi- sions of this chapter related to the non-Government share apply to amounts under this chapter used for highway projects. (j) RELATIONSHIP TO OTHER LAWS.—(1) Section 9107(a) of title 31 applies to the Secretary of Transportation under this chapter. (2) Section 3709 of the Revised Statutes (41 U.S.C. 5) applies to a contract for more than $1,000 for services or supplies related to property acquired under this chapter. (k)275 NOTIFICATION OF PENDING DISCRETIONARY GRANTS.—Not less than 3 full business days before an- nouncement of award by the Secretary of any discre- tionary grant, letter of intent, or full funding grant agreement totaling $1,000,000 or more, the Secretary 274 Sec. 3025(c) of Pub. L. No. 105-178 added para. (4). 275 Sec. 3032(6) of Pub. L. No. 109-59 added this subsection and subsec. (l).

74 shall notify the Committees on Banking, Housing, and Urban Affairs and Appropriations of the Senate and Committees on Transportation and Infrastructure and Appropriations of the House of Representatives. (l) AGENCY STATEMENTS.— (1) IN GENERAL.—The Administrator of the Fed- eral Transit Administration shall follow applicable rulemaking procedures under section 553 of title 5 before the Federal Transit Administration issues a statement that imposes a binding obligation on re- cipients of Federal assistance under this chapter. (2) BINDING OBLIGATION DEFINED.—In this subsec- tion, the term “binding obligation” means a sub- stantive policy statement, rule, or guidance docu- ment issued by the Federal Transit Administration that grants rights, imposes obligations, produces significant effects on private interests, or effects a significant change in existing policy. SECTION 5335.276 NATIONAL TRANSIT DATABASE.277 (a) NATIONAL TRANSIT DATABASE.278— 279To help meet the needs of individual public transportation systems, the United States Government, State and local govern- ments, and the public for information on which to base public transportation service planning, the Secretary of Transportation shall maintain a reporting system, us- ing uniform categories280 to accumulate public transpor- tation financial and operating information and using a uniform system of accounts.281 The reporting and uni- form systems shall contain appropriate information to help any level of government make a public sector in- vestment decision. The Secretary may request and re- ceive appropriate information from any source. (b)282 REPORTING AND UNIFORM SYSTEMS.—The Secre- tary may award a grant under section 5307 or 5311 276 Pub. L. No. 103-272 codified § 27 of the Federal Transit Act and portions of §§ 4, 12, and 15 of the Federal Transit Act to constitute this section; see app. B; omitted text in subsecs. (a), (b), and (d); and substituted text in subsecs. (a) and (b). Sec. 3028 of Pub. L. No. 102-240 added § 27. 277 Sec. 3033(a)(1) of Pub. L. No. 109-59 changed the section heading from “Reports and audits”. Sec. 3033(a)(2) of Pub. L. No. 109-59 struck subsec. (b). See app. D for text of subsec. (b) and legislative history. 278 Sec. 3026(a)(1) of Pub. L. No. 105-178 struck “Reporting System and Uniform System of Accounts and Records” and inserted “National Transit Database”. 279 Sec. 3033(a)(3)(A) of Pub. L. No. 109-59 struck the para- graph designation. 280 Sec. 3026(a)(2)(A) of Pub. L. No. 105-178 struck “by uni- form categories,” and inserted “using uniform categories”. 281 Sec. 3026(a)(2)(B) of Pub. L. No. 105-178 struck “and a uniform system of accounts and records” and inserted “and using a uniform system of accounts”. 282 Sec. 3033(a)(3)(B) of Pub. L. No. 109-59 struck “(2) The Secretary may make a grant under section 5307 of this title” and inserted “(b) REPORTING AND UNIFORM SYSTEMS.—The Secretary may award a grant under section 5307 or 5311”. Sec. only if the applicant, and any person that will receive benefits directly from the grant, are subject to the re- porting and uniform systems. SECTION 5336.283 APPORTIONMENT OF APPROPRIATIONS FOR FORMULA GRANTS.284 (a) BASED ON URBANIZED AREA POPULATION.—Of the amount apportioned under subsection (i)(2) to carry out section 5307285 — (1)286 9.32 percent shall be apportioned each fiscal year only in urbanized areas with a population of less than 200,000 so that each of those areas is en- titled to receive an amount equal to— (A) 50 percent of the total amount appor- tioned multiplied by a ratio equal to the popu- lation of the area divided by the total popula- tion of all urbanized areas with populations of less than 200,000 as shown in the latest United States Government census; and (B) 50 percent of the total amount appor- tioned multiplied by a ratio for the area based on population weighted by a factor, established by the Secretary of Transportation, of the number of inhabitants in each square mile; and (2)287 90.68 percent shall be apportioned each fis- cal year only in urbanized areas with populations of at least 200,000 as provided in subsections (b) and 3034(d)(1) of Pub. L. No. 109-59 directed striking “of this title” and inserting “to carry out section 5307”. Inserting “to carry out section 5307” here seems to best reflect Congressional in- tent. 283 Pub. L. No. 103-272 codified portions of § 9 of the Federal Transit Act to constitute this section; see app. B; substituted “apportioned” for “available”, “shall be available for expendi- ture”, “made available”, and “made available for expenditure” for clarity and consistency; omitted text in subsecs. (a), (b), (d), (e), (g), (h), (i), (j), and (k); substituted text in subsecs. (b), (d), and (g); and added text in subsecs. (c), (e), and (j). 284 Sec. 3027(a) of Pub. L. No. 105-178 struck “block grants” and inserted “formula grants”. 285 Sec. 3034(a)(3) of Pub. L. No. 109-59 struck “Of the amount made available or appropriated under section 5338(a) of this title” and inserted “Of the amount apportioned under subsection (i)(2)”. Sec. 3034(d) of Pub. L. No. 109-59 directed striking “of this title” and inserting “to carry out section 5307”. Inserting “to carry out section 5307” here seems to best reflect Congressional intent. Sec. 3029(b)(10) of Pub. L. No. 105-178 struck “5338(f)” and inserted “5338(a)”. 286 Sec. 3013(a)(1) of Pub. L. No. 102-240 struck “Of the amount appropriated from the general fund of the Treasury under section 21(a) of this Act, 8.64 per centum shall be avail- able for expenditure under this section in each fiscal year only in urbanized areas with a population of less than 200,000.” and inserted “Of the amounts made available…less than 200,000.”. 287 Sec. 3013(a)(2) of Pub. L. No. 102-240 struck “Of the amount appropriated from the general fund of the Treasury under section 21(a) of this Act, 88.43 per centum shall be available for expenditure under this section in each fiscal year only in urbanized areas with a population of less than 200,000 or more.”.

75 (c) of this section, except that the amount appor- tioned to the Anchorage urbanized area under sub- section (b) shall be available to the Alaska Railroad for any costs related to its passenger operations.288 (b) BASED ON FIXED GUIDEWAY REVENUE VEHICLE- MILES, ROUTE-MILES, AND PASSENGER-MILES.—(1) In this subsection, “fixed guideway revenue vehicle-miles” and “fixed guideway route-miles” include ferry boat operations directly or under contract by the designated recipient and, beginning in fiscal year 2006, 60 percent of the directional route miles attributable to the Alaska Railroad passenger operations.289 (2) Of the amount apportioned under subsection (a)(2) of this section, 33.29 percent shall be appor- tioned as follows: (A) 95.61 percent of the total amount appor- tioned under this subsection shall be appor- tioned so that each urbanized area with a population of at least 200,000 is entitled to re- ceive an amount equal to— (i) 60 percent of the 95.61 percent appor- tioned under this subparagraph multiplied by a ratio equal to the number of fixed guideway revenue vehicle-miles attribut- able to the area, as established by the Sec- retary of Transportation, divided by the to- tal number of all fixed guideway revenue vehicle-miles attributable to all areas; and (ii) 40 percent of the 95.61 percent ap- portioned under this subparagraph multi- plied by a ratio equal to the number of fixed guideway route-miles attributable to the area, established by the Secretary, di- vided by the total number of all fixed guideway route-miles attributable to all areas. An urbanized area with a population of at least 750,000 in which commuter rail transpor- tation is provided shall receive at least .75 per- cent of the total amount apportioned under this subparagraph.290 (B) 4.39 percent of the total amount appor- tioned under this subsection shall be appor- tioned so that each urbanized area with a population of at least 200,000 is entitled to re- ceive an amount equal to— (i) the number of fixed guideway vehicle passenger-miles traveled multiplied by the number of fixed guideway vehicle passen- ger-miles traveled for each dollar of oper- ating cost in an area; divided by 288 Sec. 3034(d)(2) of Pub. L. No. 109-59 inserted “, except that the amount apportioned…related to its passenger opera- tions”. 289 Sec. 3034(d)(3) of Pub. L. No. 109-59 inserted “and, be- ginning in fiscal year 2006, …passenger operations”. 290 Sec. 5(19)(A) of Pub. L. No. 104-287 added this sentence here and at the end of subpara. (B). (ii) the total number of fixed guideway vehicle passenger-miles traveled multi- plied by the total number of fixed guide- way vehicle passenger-miles traveled for each dollar of operating cost in all areas. An urbanized area with a population of at least 750,000 in which commuter rail transpor- tation is provided shall receive at least .75 per- cent of the total amount apportioned under this subparagraph. (C)291 Under subparagraph (A) of this para- graph, fixed guideway revenue vehicle- or route-miles, and passengers served on those miles, in an urbanized area with a population of less than 200,000, where the miles and pas- sengers served otherwise would be attributable to an urbanized area with a population of at least 1,000,000 in an adjacent State, are at- tributable to the governmental authority in the State in which the urbanized area with a popu- lation of less than 200,000 is located. The au- thority is deemed an urbanized area with a population of at least 200,000 if the authority makes a contract for the service. (D)292 A recipient's apportionment under sub- paragraph (A)(i) of this paragraph may not be reduced if the recipient, after satisfying the Secretary of Transportation that energy or op- erating efficiencies would be achieved, reduces revenue vehicle-miles but provides the same frequency of revenue service to the same num- ber of riders. (c)293 BASED ON BUS REVENUE VEHICLE-MILES AND PASSENGER-MILES.—Of the amount apportioned under subsection (a)(2) of this section, 66.71 percent shall be apportioned as follows: (1) 90.8 percent of the total amount apportioned under this subsection shall be apportioned as fol- lows: (A) 73.39 percent of the 90.8 percent appor- tioned under this paragraph shall be appor- tioned so that each urbanized area with a population of at least 1,000,000 is entitled to receive an amount equal to— (i) 50 percent of the 73.39 percent appor- tioned under this subparagraph multiplied by a ratio equal to the total bus revenue vehicle-miles operated in or directly serv- ing the urbanized area divided by the total 291 Sec. 5(19)(B) and (C) of Pub. L. No. 104-287 struck sub- para. (C) and redesignated subparas. (D) and (E) as subparas. (C) and (D). The struck subparagraph was substantively iden- tical to the sentence added at the end of subparas. (A) and (B). 292 Sec. 3013(b) of Pub. L. No. 102-240 added § 9(b)(4) of the Federal Transit Act, the predecessor provision to this subpara- graph. 293 See another subsec. (c) added at the end of this section by Pub. L. No. 109-59, tit. III, sec. 3034(c).

76 bus revenue vehicle-miles attributable to all areas; (ii) 25 percent of the 73.39 percent ap- portioned under this subparagraph multi- plied by a ratio equal to the population of the area divided by the total population of all areas, as shown by the latest Govern- ment census; and (iii) 25 percent of the 73.39 percent ap- portioned under this subparagraph multi- plied by a ratio for the area based on popu- lation weighted by a factor, established by the Secretary of Transportation, of the number of inhabitants in each square mile. (B) 26.61 percent of the 90.8 percent appor- tioned under this paragraph shall be appor- tioned so that each urbanized area with a population of at least 200,000 but not more than 999,999 is entitled to receive an amount equal to— (i) 50 percent of the 26.61 percent appor- tioned under this subparagraph multiplied by a ratio equal to the total bus revenue vehicle-miles operated in or directly serv- ing the urbanized area divided by the total bus revenue vehicle-miles attributable to all areas; (ii) 25 percent of the 26.61 percent ap- portioned under this subparagraph multi- plied by a ratio equal to the population of the area divided by the total population of all areas, as shown by the latest Govern- ment census; and (iii) 25 percent of the 26.61 percent ap- portioned under this subparagraph multi- plied by a ratio for the area based on popu- lation weighted by a factor, established by the Secretary of Transportation, of the number of inhabitants in each square mile. (2) 9.2 percent of the total amount apportioned under this subsection shall be apportioned so that each urbanized area with a population of at least 200,000 is entitled to receive an amount equal to— (A) the number of bus passenger-miles trav- eled multiplied by the number of bus passen- ger-miles traveled for each dollar of operating cost in an area; divided by (B) the total number of bus passenger-miles traveled multiplied by the total number of bus passenger-miles traveled for each dollar of op- erating cost in all areas. (d)294 295 DATE OF APPORTIONMENT.—The Secretary of Transportation shall— 294 Sec. 3034(a)(1) and (2) struck subsecs. (d), (h), and (k) and redesignated subsecs. (e), (f), (g), (i), and (j) as subsecs. (d), (e), (f), (g), and (h), respectively. Before amendment, subsecs. (d), (h), and (k) read as follows: (d) [Reserved.] Section 3027(b) of Pub. L. No. 105-178 amended the former subsection (d) to read: “[Reserved.]” Pub. L. (1) apportion amounts appropriated under sub- sections (a) and (h)(2) of section 5338296 of this title to carry out section 5307 of this title not later than the 10th day after the date the amounts are appro- priated or October 1 of the fiscal year for which the amounts are appropriated, whichever is later; and (2) publish apportionments of the amounts, in- cluding amounts attributable to each urbanized area with a population of more than 50,000 and amounts attributable to each State of a multistate urbanized area, on the apportionment date. (e) AMOUNTS NOT APPORTIONED TO DESIGNATED RECIPIENTS.—The chief executive officer of a State may expend in an urbanized area with a population of less than 200,000 an amount apportioned under this section that is not apportioned to a designated recipient as de- fined in section 5307(a) of this title. (f) TRANSFERS OF APPORTIONMENTS.—(1) The chief ex- ecutive officer of a State may transfer any part of the State's apportionment under subsection (a)(1) of this section to supplement amounts apportioned to the State under section 5311(c) of this title or amounts appor- tioned to urbanized areas under this subsection.297 The chief executive officer may make a transfer only after consulting with responsible local officials and publicly owned operators of public transportation in each area for which the amount originally was apportioned under this section. (2) The chief executive officer of a State may transfer any part of the State's apportionment un- der section 5311(c) of this title to supplement No. 104-205, 110 Stat. 2963, limited the amount available for operating assistance under section 5336(d). (h) CHANGES OF APPORTIONMENTS.—If sufficient amounts are available, the Secretary of Transportation shall change appor- tionments under this section between the Mass Transit Account of the Highway Trust Fund and the general fund to ensure that each recipient receives from the general fund at least as much operating assistance made available each fiscal year under this section as the recipient is eligible to receive. Section 3013(k) of Pub. L. No. 102-240 added section 9(t) of the Federal Transit Act, the precodification version of this subsection. (k) CERTAIN URBANIZED AREAS GRANDFATHERED.—An area designated an urbanized area under the 1980 census and not designated an urbanized area under the 1990 census for the fis- cal year ending September 30, 1993, is eligible to receive— (1) 50 percent of the amount the area would have received if the area had been an urbanized area as defined by section 5302(a)(13) of this title; and (2) an amount equal to 50 percent of the amount that the State in which the area is located would have received if the area had been an area other than an urbanized area. Section 3013(j) of Pub. L. No. 102-240 added section 9(s) of the Federal Transit Act, predecessor to this subsection. 295 Sec. 312(e) of Pub. L. No. 100-17 added § 9(q) of the Fed- eral Transit Act, the precodification version of this subsection. 296 Sec. 3029(b)(11) of Pub. L. No. 105-178 struck “section 5338(f)” and inserted “subsections (a) and (h)(2) of section 5338”. 297 Sec. 312(d)(1) of Pub. L. No. 100-17 struck “with popula- tions of three hundred thousand or less” from § 9(n)(1) of the Federal Transit Act, predecessor to this paragraph.

77 amounts apportioned to the State under subsection (a)(1) of this section. (3) The chief executive officer of a State may use throughout the State amounts of a State's appor- tionment remaining available for obligation at the beginning of the 90-day period before the period of the availability of the amounts expires.298 (4) A designated recipient for an urbanized area with a population of at least 200,000 may transfer a part of its apportionment under this section to the chief executive officer of a State. The chief execu- tive officer shall distribute the transferred amounts to urbanized areas under this section. (5) Capital and operating assistance limitations applicable to the original apportionment apply to amounts transferred under this subsection. (g) PERIOD OF AVAILABILITY TO RECIPIENTS.—An amount apportioned under this section may be obli- gated by the recipient for 3 years after the fiscal year in which the amount is apportioned. Not later than 30 days after the end of the 3-year period,299 an amount that is not obligated at the end of that period shall be added to the amount that may be apportioned under this section in the next fiscal year. (h)300 APPLICATION OF OTHER SECTIONS.—Sections 5302, 5318, 5323(a)(1), (d), and (f), 5332, and 5333 of this title apply to this section and to a grant made with funds apportioned under301 this section. Except as pro- vided in this section, no other provision of this chapter applies to this section or to a grant made with funds apportioned under this section. (i) APPORTIONMENTS.—Of the amounts made available for each fiscal year under subsections (a)(1)(C)(vi) and (b)(2)(B) of section 5338— (1) one percent shall be apportioned, in fiscal year 2006 and each fiscal year thereafter, to certain urbanized areas with populations of less than 200,000 in accordance with subsection (j); and (2) any amount not apportioned under paragraph (1) shall be apportioned to urbanized areas in ac- cordance with subsections (a) through (c). (j)302 SMALL TRANSIT INTENSIVE CITIES FORMULA.— (1) DEFINITIONS.—In this subsection, the follow- ing definitions apply: (A) ELIGIBLE AREA.—The term “eligible area” means an urbanized area with a population of less than 200,000 that meets or exceeds in one 298 Sec. 312(d)(2) of Pub. L. No. 100-17 added an analogous provision to § 9(n)(1) of the Federal Transit Act, predecessor to this paragraph. 299 Sec. 311 of Pub. L. No. 100-17 amended § 9(o) of the Fed- eral Transit Act, predecessor to this subsection, by adding “not later than 30 days after the end of such period”. 300 Sec. 3034(a)(3) of Pub. L. No. 109-59 added this subsec- tion. 301 Sec. 3034(a)(4) of Pub. L. No. 109-59 struck “a grant made under” here and in the next sentence and inserted “a grant made with funds apportioned under”. 302 Sec. 3034(b) of Pub. L. No. 109-59 added this subsection. or more performance categories the industry average for all urbanized areas with a popula- tion of at least 200,000 but not more than 999,999, as determined by the Secretary in ac- cordance with subsection (c)(2). (B) PERFORMANCE CATEGORY.—The term “performance category” means each of the fol- lowing: (i) Passenger miles traveled per vehicle revenue mile. (ii) Passenger miles traveled per vehicle revenue hour. (iii) Vehicle revenue miles per capita. (iv) Vehicle revenue hours per capita. (v) Passenger miles traveled per capita. (vi) Passengers per capita. (2) APPORTIONMENT.— (A) APPORTIONMENT FORMULA.—The amount to be apportioned under subsection (i)(1) shall be apportioned among eligible areas in the ra- tio that— (i) the number of performance categories for which each eligible area meets or ex- ceeds the industry average in urbanized areas with a population of at least 200,000 but not more than 999,999; bears to (ii) the aggregate number of performance categories for which all eligible areas meet or exceed the industry average in urban- ized areas with a population of at least 200,000 but not more than 999,999. (B) DATA USED IN FORMULA.—The Secretary shall calculate apportionments under this sub- section for a fiscal year using data from the na- tional transit database used to calculate appor- tionments for that fiscal year under this section. (c)303 STUDY ON INCENTIVES IN FORMULA PROGRAMS.— (1) STUDY.—The Secretary shall conduct a study to assess the feasibility and appropriateness of de- veloping and implementing an incentive funding system under sections 5307 and 5311 for operators of public transportation. (2) REPORT.— (A) IN GENERAL.—Not later than 2 years after the date of enactment of the Federal Public Transportation Act of 2005, the Secretary shall submit a report on the results of the study con- ducted under paragraph (1) to the Committee on Banking, Housing, and Urban Affairs of the Senate and the Committee on Transportation and Infrastructure of the House of Representa- tives. (B) CONTENTS.—The report submitted under subparagraph (A) shall include— (i) an analysis of the availability of appropriate measures to be used as a 303 Sec. 3034(c) of Pub. L. No. 109-59 added this subsection, which probably should have been designated subsec. (k).

78 basis for the distribution of incentive payments; (ii) the optimal number and size of any incentive programs; (iii) what types of systems should compete for various incentives; (iv) how incentives should be dis- tributed; and (v) the likely effects of the incentive funding system. SECTION 5337.304 APPORTIONMENT BASED ON FIXED GUIDEWAY FACTORS.305 (a)306 DISTRIBUTION.—The Secretary shall apportion amounts made available for fixed guideway moderniza- tion under section 5309 for each of fiscal years 1998 through 2003 as follows: (1) The first $497,700,000 shall be apportioned in the following urbanized areas as follows: (A) Baltimore, $8,372,000. (B) Boston, $38,948,000. (C) Chicago/Northwestern Indiana, $78,169,000. (D) Cleveland, $9,509,500. (E) New Orleans, $1,730,588. (F) New York, $176,034,461. (G) Northeastern New Jersey, $50,604,653. (H) Philadelphia/Southern New Jersey, $58,924,764. (I) Pittsburgh, $13,662,463. 304 Pub. L. No. 103-272 codified portions of § 3 of the Federal Transit Act to constitute this section; see app. B; substituted “apportioned” for “available”, “shall be available for expendi- ture”, “made available”, and “made available for expenditure” for clarity and consistency; omitted text in subsecs. (a), (c), and (d); and translated text in subsec. (c). The fixed-guideway pro- vision was first added to the Federal Transit Act by Pub. L. No. 93-503, and subsequently amended by subsec. 302(d) of Pub. L. No. 95-599 and sec. 3008 of Pub. L. No. 102-240. 305 Sec. 3035(a)(1) of Pub. L. No. 109-59 struck the previous section heading (“Apportionment of appropriations for fixed guideway modernization”) and inserted this one. 306 Sec. 3028(a) of Pub. L. No. 105-178 amended heading and text of this subsection generally, substituting provisions relat- ing to distribution for fiscal years 1998 through 2003 for provi- sions relating to percentage distribution for fiscal years ending Sept. 30, 1993–1997, and for period of Oct. 1, 1997, through Mar. 31, 1998. Sec. 3028(c) of Pub. L. No. 105-178, as added by sec. 9009(p) of Pub. L. No. 105-206, further amended this sub- section by striking “(e)” and inserting “(e)(1)” in para. 2(B); by striking “(ii)” and “(e)” and inserting “(e)(1)” in para. (3)(D); by striking “(e)” and inserting “(e)(1)” in para. (4); by striking “(e)” and inserting “(e)(2)” in paras. (5)(A) and (5)(B); and by strik- ing “(e)” each place it appears and inserting “(e)(2)” in paras. (6) and (7). Prior to the sec. 3028(a) amendment, § 3049(b)(1) of Pub. L. No. 102-240, as added by sec. 8 of Pub. L. No. 105-130, inserted “and for the period of October 1, 1997, through March 31, 1998,” after “1997,” in introductory provisions; sec. 6(14) of Pub. L. No. 103-429 struck “section 5336(B)(2)(A)” and substi- tuted “section 5336(b)(2)(A) of this title”. (J) San Francisco, $33,989,571. (K) Southwestern Connecticut, $27,755,000. (2) The next $70,000,000 shall be apportioned as follows: (A) 50 percent in the urbanized areas listed in paragraph (1), as provided in section 5336(b)(2)(A). (B) 50 percent in other urbanized areas eligi- ble for assistance under section 5336(b)(2)(A) to which amounts were apportioned under this section for fiscal year 1997, as provided in sec- tion 5336(b)(2)(A) and subsection (e)(1) of this section. (3) The next $5,700,000 shall be apportioned in the following urbanized areas as follows: (A) Pittsburgh, 61.76 percent. (B) Cleveland, 10.73 percent. (C) New Orleans, 5.79 percent. (D) 21.72 percent in urbanized areas to which paragraph (2)(B) applies, as provided in section 5336(b)(2)(A) and subsection (e)(1) of this section. (4) The next $186,600,000 shall be apportioned in each urbanized area to which paragraph (1) applies and in each urbanized area to which paragraph (2)(B) applies, as provided in section 5336(b)(2)(A) and subsection (e)(1) of this section. (5) The next $70,000,000 shall be apportioned as follows: (A) 65 percent in the urbanized areas listed in paragraph (1), as provided in section 5336(b)(2)(A) and subsection (e)(2) of this sec- tion. (B) 35 percent to other urbanized areas eligi- ble for assistance under section 5336(b)(2)(A) if the areas contain fixed guideway systems placed in revenue service at least 7 years be- fore the fiscal year in which amounts are made available and in any urbanized area if, before the first day of the fiscal year, the area satis- fies the Secretary that the area has moderniza- tion needs that cannot adequately be met with amounts received under section 5336(b)(2)(A), as provided in section 5336(b)(2)(A) and sub- section (e)(2) of this section. (6) The next $50,000,000 shall be apportioned as follows: (A) 60 percent in the urbanized areas listed in paragraph (1), as provided in section 5336(b)(2)(A) and subsection (e)(2) of this sec- tion. (B) 40 percent to urbanized areas to which paragraph (5)(B) applies, as provided in section 5336(b)(2)(A) and subsection (e)(2) of this sec- tion. (7) Remaining amounts shall be apportioned as follows: (A) 50 percent in the urbanized areas listed in paragraph (1), as provided in section

79 5336(b)(2)(A) and subsection (e)(2) of this sec- tion. (B) 50 percent to urbanized areas to which paragraph (5)(B) applies, as provided in section 5336(b)(2)(A) and subsection (e)(2) of this sec- tion. (b) TOTAL AMOUNTS NOT AVAILABLE.—In a fiscal year in which the total amounts authorized under subsection (a)(1) and (2) of this section are not available, the Secre- tary shall reduce on a proportionate basis the appor- tionments of all urbanized areas eligible under subsec- tion (a)(1) or (2) to adjust for the amount not available. (c) NEW JERSEY TRANSIT CORPORATION.—Rail mod- ernization amounts allocated to the New Jersey Transit Corporation under this section may be spent in any urbanized area in which the New Jersey Transit Corpo- ration operates rail transportation, regardless of which urbanized area generates the financing. (d) AVAILABILITY OF AMOUNTS.—An amount appor- tioned under this section— (1) remains available for 3 years after the fiscal year in which the amount is apportioned; and (2) that is unobligated at the end of the 3-year period shall be reapportioned for the next fiscal year among urbanized areas eligible under subsec- tion (a)(1)-(3) of this section using the apportion- ment formula of this section. (e)307 ROUTE SEGMENTS TO BE INCLUDED IN APPORTIONMENT FORMULAS.— (1)308 1997 STANDARD.—Amounts apportioned un- der paragraphs (2)(B), (3), and (4) of subsection (a) shall have attributable to each urbanized area only the number of fixed guideway revenue miles of ser- vice and number of fixed guideway route miles for segments of fixed guideway systems used to deter- mine apportionments for fiscal year 1997. (2) OTHER STANDARDS.—Amounts apportioned under paragraphs (5) through (7) of subsection (a) shall have attributable to each urbanized area only the number of fixed guideway revenue miles of ser- vice and number of fixed guideway route-miles for 307 Sec. 3028(b) of Pub. L. No. 105-178 added this subsection. It should have been designated “(f)” as at the time of enact- ment, this section already contained a subsec. (e), which read: “SPECIAL RULE FOR OCTOBER 1, 1997, THROUGH MARCH 31, 1998.—The Secretary shall determine the amount that each urbanized area is to be apportioned for fixed guideway mod- ernization under this section on a pro rata basis to reflect the partial fiscal year 1998 funding made available by section 5338(b)(1)(F)”. (Subsec. 5338(f) was generally amended by sec. 3029(a) of Pub. L. No. 105-178 and no longer contains a sub- para. (F)). Sec. 8(b)(1) of Pub. L. No. 108-88 set forth a special rule for the period Oct. 1, 2003, through Feb. 29, 2004 (see part II). Subsec. 8(b)(2) struck the first subsec. 5337(e). 308 Sec. 3029(b)(12) of Pub. L. No. 105-178 directed that this subsection be amended by striking “section 5338(f)” and insert- ing “subsections (b) and (h)(4) of section 5338”. This could not be executed, as “section 5338(f)” does not appear in the text. segments of fixed guideway systems placed in reve- nue service at least 7 years before the fiscal year in which amounts are made available. (f)309 ADJUSTMENT.—For purposes of this section, an urbanized area with a population of 55,997, according to the most recent decennial census, shall be treated as an urbanized area eligible for assistance under section 5336(b)(2)(A) to which amounts were apportioned under this section for fiscal year 1997. For the purposes of subsection (e)(1), the number of fixed guideway revenue vehicle miles of service and number of fixed guideway route miles for that urbanized area as of the date of enactment of the Federal Public Transportation Act of 2005 shall be considered to have been used to determine apportionments for fiscal year 1997. SECTION 5338.310 AUTHORIZATIONS. (a) FISCAL YEAR 2005.— (1) FORMULA GRANTS.— (A) TRUST FUND.—For fiscal year 2005, $3,499,927,776 shall be available from the Mass Transit Account of the Highway Trust Fund to carry out sections 5307, 5308, 5310, and 5311 and section 3038 of the Transporta- tion Equity Act for the 21st Century (49 U.S.C. 5310 note). (B) GENERAL FUND.—In addition to the amounts made available under subparagraph (A), there is authorized to be appropriated $499,989,824 for fiscal year 2005 to carry out sections 5307, 5308, 5310, and 5311 and sec- tion 3038 of the Transportation Equity Act for the 21st Century (49 U.S.C. 5310 note). (C) ALLOCATION OF FUNDS.—Of the amounts made available or appropriated under this paragraph— (i) $4,811,150 shall be available to the Alaska Railroad for improvements to its passenger operations under section 5307; (ii) $5,208,000 shall be available to pro- vide over-the-road bus accessibility grants under section 3038 of the Transportation Equity Act for the 21st Century (49 U.S.C. 5310 note) to operators of intercity, fixed- route over-the-road buses; (iii) $1,686,400 shall be available to pro- vide over-the-road bus accessibility grants under section 3038 of the Transportation Equity Act for the 21st Century (49 U.S.C. 5310 note) to operators of over-the-road buses providing other than intercity, fixed- route service; (iv) $94,526,689 shall be available to provide transportation services to elderly 309 Sec. 3035(a)(2) of Pub. L. No. 109-59 added this subsec- tion. 310 Sec. 3036 of Pub. L. No. 109-59 amended this section generally. See app. D for text of section before amendment and legislative history.

80 individuals and individuals with disabili- ties under section 5310; (v) $250,889,588 shall be available to provide financial assistance for other than urbanized areas under section 5311; (vi) $3,593,195,773 shall be available to provide financial assistance for urbanized areas under section 5307; and (vii) $49,600,000 shall be available to carry out the clean fuels program under section 5308. (2) JOB ACCESS AND REVERSE COMMUTE.— (A) TRUST FUND.—For fiscal year 2005, $108,500,000 shall be available from the Mass Transit Account of the Highway Trust Fund to carry out section 3037 of the Transportation Equity Act for the 21st Century (49 U.S.C. 5309 note). (B) GENERAL FUND.—In addition to the amounts made available under subparagraph (A), there is authorized to be appropriated $15,500,000 for fiscal year 2005 to carry out section 3037 of the Transportation Equity Act of the 21st Century (49 U.S.C. 5309 note). (3) CAPITAL PROGRAM GRANTS.— (A) TRUST FUND.—For fiscal year 2005, $2,898,100,224 shall be available from the Mass Transit Account of the Highway Trust Fund to carry out section 5309. (B) GENERAL FUND.—In addition to the amounts made available under subparagraph (A), there is authorized to be appropriated $414,014,176 for fiscal year 2005 to carry out sections 5308, 5309, and 5318 and section 3015(b) of the Transportation Equity Act for the 21st Century (112 Stat. 361). (C) ALLOCATION OF FUNDS.—Of the amounts made available or appropriated under this paragraph— (i) $49,600,000 shall be available to carry out the clean fuels program under section 5308; (ii) $669,600,000 shall be available for capital projects to replace, rehabilitate, and purchase bus and related equipment and to construct bus-related facilities un- der section 5309; (iii) $1,204,684,800 shall be available for fixed guideway modernization under sec- tion 5309; (iv) $1,437,829,600 shall be available for capital projects for new fixed guideway systems and extensions to existing fixed guideway systems under section 5309; (v) $10,213,632 shall be available for capital projects in Alaska and Hawaii un- der section 5309; (vi) $2,976,000 shall be available to carry out bus testing under section 5318; and (vii) $4,811,200 shall be available to carry out the fuel cell bus and bus facilities program under section 3015(b) of the Transportation Equity Act for the 21st Century (112 Stat. 361). (4) PLANNING.— (A) TRUST FUND.—For fiscal year 2005, $63,364,000 shall be available from the Mass Transit Account of the Highway Trust Fund to carry out sections 5303, 5304, 5305, and 5313(b), as in effect on the day before the date of enactment of the Federal Public Transporta- tion Act of 2005. (B) GENERAL FUND.—In addition to the amounts made available under subparagraph (A), there is authorized to be appropriated $9,052,000 for fiscal year 2005 to carry out sec- tions 5303, 5304, 5305, and 5313(b), as in effect on the day before the date of enactment of the Federal Public Transportation Act of 2005. (C) ALLOCATION OF FUNDS.—Of the amounts made available or appropriated under this paragraph— (i) 82.72 percent shall be allocated for metropolitan planning under section 5305; and (ii) 17.28 percent shall be allocated for State planning under section 5305. (5) RESEARCH.— (A) TRUST FUND.—For fiscal year 2005, $47,740,000 shall be available from the Mass Transit Account of the Highway Trust Fund to carry out sections 5311(b)(2), 5312, 5313(a), 5314, 5315, and 5322. (B) GENERAL FUND.—In addition to the amounts made available under subparagraph (A), there is authorized to be appropriated $6,820,000 for fiscal year 2005 to carry out sec- tions 5311(b)(2), 5312, 5313(a), 5314, 5315, and 5322. (C) ALLOCATION OF FUNDS.—Of the funds made available or appropriated under this paragraph— (i) not less than $3,968,000 shall be available to carry out programs under the National Transit Institute under section 5315, of which not more than $992,000 shall be available to carry out section 5315(a)(16); (ii) not less than $5,208,000 shall be available to provide rural transportation assistance under section 5311(b)(2); (iii) not less than $8,184,000 shall be available to carry out transit cooperative research programs under section 5313(a); (iv) not less than $2,976,000 shall be available to carry out Project Action under section 5312; and (v) the remainder shall be available to carry out national research and technology

81 programs under sections 5312, 5314, and 5322. (6) UNIVERSITY TRANSPORTATION RESEARCH.— (A) TRUST FUND.—For fiscal year 2005, $5,208,000 shall be available from the Mass Transit Account of the Highway Trust Fund to carry out section 5505. (B) GENERAL FUND.—In addition to amounts made available under subparagraph (A), there is authorized to be appropriated $744,000 for fiscal year 2005 to carry out section 5505. (C) ALLOCATION OF FUNDS.—Of the amounts made available or appropriated under this paragraph— (i) $1,984,000 shall be available for grants under section 5505(d) to the center identified in section 5505(j)(4)(A), as in ef- fect on the day before the date of enact- ment of the Federal Public Transportation Act of 2005; and (ii) $1,984,000 shall be available for grants under section 5505(d) to the center identified in section 5505(j)(4)(F), as in ef- fect on the day before the date of enact- ment of the Federal Public Transportation Act of 2005. (D) SPECIAL RULE.—Nothing in this para- graph shall be construed to limit the transpor- tation research conducted by the centers re- ceiving financial assistance under this section. (7) ADMINISTRATION.— (A) TRUST FUND.—For fiscal year 2005, $67,704,000 shall be available from the Mass Transit Account of the Highway Trust Fund to carry out section 5334. (B) GENERAL FUND.—In addition to amounts made available under subparagraph (A), there is authorized to be appropriated $9,672,000 for fiscal year 2005 to carry out section 5334. (8) AVAILABILITY OF AMOUNTS.—Amounts made available or appropriated under paragraphs (1) through (6) shall remain available until expended. (b) FORMULA AND BUS GRANTS.— (1) IN GENERAL.—There shall be available from the Mass Transit Account of the Highway Trust Fund to carry out sections 5305, 5307, 5308, 5309, 5310, 5311, 5316, 5317, 5320, 5335, 5339, and 5340 and section 3038 of the Federal Transit Act of 1998 (112 Stat. 387 et seq.)— (A) $6,979,931,000 for fiscal year 2006; (B) $7,262,775,000 for fiscal year 2007; (C) $7,872,893,000 for fiscal year 2008; and (D) $8,360,565,000 for fiscal year 2009. (2) ALLOCATION OF FUNDS.—Of the amounts made available under paragraph (1)— (A) $95,000,000 for fiscal year 2006, $99,000,000 for fiscal year 2007, $107,000,000 for fiscal year 2008, and $113,500,000 for fiscal year 2009 shall be available to carry out sec- tion 5305; (B) $3,466,681,000 for fiscal year 2006, $3,606,175,000 for fiscal year 2007, $3,910,843,000 for fiscal year 2008, and $4,160,365,000 for fiscal year 2009 shall be al- located in accordance with section 5336 to pro- vide financial assistance for urbanized areas under section 5307; (C) $43,000,000 for fiscal year 2006, $45,000,000 for fiscal year 2007, $49,000,000 for fiscal year 2008, and $51,500,000 for fiscal year 2009 shall be available to carry out sec- tion 5308; (D) $1,391,000,000 for fiscal year 2006, $1,448,000,000 for fiscal year 2007, $1,570,000,000 for fiscal year 2008, and $1,666,500,000 for fiscal year 2009 shall be al- located in accordance with section 5337 to pro- vide financial assistance under section 5309(m)(2)(B); (E) $822,250,000 for fiscal year 2006, $855,500,000 for fiscal year 2007, $927,750,000 for fiscal year 2008, and $984,000,000 for fiscal year 2009 shall be available to carry out sec- tion 5309(m)(2)(C); (F) $112,000,000 for fiscal year 2006, $117,000,000 for fiscal year 2007, $127,000,000 for fiscal year 2008, and $133,500,000 for fiscal year 2009 shall be available to provide finan- cial assistance for services for elderly persons and persons with disabilities under section 5310; (G) $388,000,000 for fiscal year 2006, $404,000,000 for fiscal year 2007, $438,000,000 for fiscal year 2008, and $465,000,000 for fiscal year 2009 shall be available to provide finan- cial assistance for other than urbanized areas under section 5311; (H) $138,000,000 for fiscal year 2006, $144,000,000 for fiscal year 2007, $156,000,000 for fiscal year 2008, and $164,500,000 for fiscal year 2009 shall be available to carry out sec- tion 5316; (I) $78,000,000 for fiscal year 2006, $81,000,000 for fiscal year 2007, $87,500,000 for fiscal year 2008, and $92,500,000 for fiscal year 2009 shall be available to carry out sec- tion 5317; (J) $22,000,000 for fiscal year 2006, $23,000,000 for fiscal year 2007, $25,000,000 for fiscal year 2008, and $26,900,000 for fiscal year 2009 shall be available to carry out sec- tion 5320; (K) $3,500,000 in fiscal year 2006; $3,500,000 in fiscal year 2007; $3,500,000 in fiscal year 2008; and $3,500,000 in fiscal year 2009 shall be available to carry out section 5335; (L) $25,000,000 in fiscal year 2006; $25,000,000 in fiscal year 2007; $25,000,000 in fiscal year 2008; and $25,000,000 in fiscal year

82 2009 shall be available to carry out section 5339; (M) $388,000,000 for fiscal year 2006, $404,000,000 for fiscal year 2007, $438,000,000 for fiscal year 2008, and $465,000,000 for fiscal year 2009 shall be allocated in accordance with section 5340 to provide financial assistance for urbanized areas under section 5307 and other than urbanized areas under section 5311; and (N) $7,500,000 for fiscal year 2006, $7,600,000 for fiscal year 2007, $8,300,000 for fiscal year 2008, and $8,800,000 for fiscal year 2009 shall be available to carry out section 3038 of the Transportation Equity Act for the 21st Century (49 U.S.C. 5310 note). (c) CAPITAL INVESTMENT GRANTS.—There are author- ized to be appropriated to carry out section 5309(m)(2)(A)— (1) $1,503,000,000 for fiscal year 2006; (2) $1,566,000,000 for fiscal year 2007; (3) $1,700,000,000 for fiscal year 2008; and (4) $1,809,250,000 for fiscal year 2009. (d) RESEARCH AND UNIVERSITY RESEARCH CENTERS.— (1) IN GENERAL.—There is authorized to be ap- propriated to carry out transit cooperative research programs under section 5313, the National Transit Institute under section 5315, university research centers under section 5506, and national research programs under sections 5312, 5313, 5314, and 5322 $58,000,000 for fiscal year 2006, $61,000,000 for fiscal year 2007, $65,500,000 for fiscal year 2008, and $69,750,000 for fiscal year 2009, of which— (A) $9,000,000 for fiscal year 2006, $9,300,000 for fiscal year 2007, $9,600,000 for fiscal year 2008, and $10,000,000 for fiscal year 2009 shall be allocated to carry out transit co- operative research programs under section 5313; (B) $4,300,000 shall be allocated for each fis- cal year to carry out programs under the Na- tional Transit Institute under section 5315, of which not more than $1,000,000 for each fiscal year shall be used to carry out section 5315(a)(16); (C) $7,000,000 shall be allocated for each fis- cal year to carry out the university centers program under section 5506; (D) $3,000,000 shall be allocated for each fis- cal year to carry out Project Action under sec- tion 5314(a)(2); (E) $1,000,000 shall be allocated for each fis- cal year to carry out the National Technical Assistance Center under section 5314(c); and (F) any funds made available under this paragraph that are not allocated under sub- paragraphs (A) through (E) shall be allocated to carry out national research programs under sections 5312, 5313, 5314, and 5322. (2) UNIVERSITY CENTERS PROGRAM.— (A) ALLOCATION.—Of the amounts allocated under paragraph (1)(C), the following amounts shall be available to provide transportation re- search, training, and curriculum development: (i) $2,000,000 for each of fiscal years 2006 through 2009 for the University of Tennessee—Knoxville National Transpor- tation Research Center. (ii) $1,500,000 for each of fiscal years 2006 through 2009 for Texas A&M Univer- sity—Texas Transportation Institute. (iii) $1,000,000 for each of fiscal years 2006 through 2009 for Morgan State Uni- versity. (iv) $400,000 for each of fiscal years 2006 and 2007 for the Small Urban and Rural Transit Center at North Dakota State University. (v) $550,000 for each of fiscal years 2006 and 2007 and $650,000 for each of fiscal years 2008 and 2009 for the University Transportation Center at the University of Alabama. (vi) $450,000 for each of fiscal years 2006 and 2007 and $550,000 for each of fiscal years 2008 and 2009 for the Injury Control Research Center at the University of Ala- bama Birmingham. (vii) $550,000 for each of fiscal years 2006 and 2007 and $650,000 for each of fiscal years 2008 and 2009 for the Jackson State University Intermodal Transporta- tion Institute at the Jackson State Univer- sity. (viii) $550,000 for each of fiscal years 2006 and 2007 and $650,000 for each of fiscal years 2008 and 2009 for the Univer- sity Transportation Center at the Univer- sity of Denver/Mississippi State Univer- sity. (B) REQUIREMENTS.—The universities speci- fied in subparagraph (A) shall be considered to be university transportation centers under sec- tion 5506 and shall be subject to the require- ments of subsections (b), (h), (i), (k), (l), and (m) of such section. (e) ADMINISTRATION.—There is authorized to be ap- propriated to carry out section 5334— (1) $82,000,000 for fiscal year 2006; (2) $85,000,000 for fiscal year 2007; (3) $92,500,000 for fiscal year 2008; and (4) $98,500,000 for fiscal year 2009. (f) GRANTS AS CONTRACTUAL OBLIGATIONS.— (1) GRANTS FINANCED FROM HIGHWAY TRUST FUND.—A grant or contract that is approved by the Secretary and financed with amounts made avail- able from the Mass Transit Account of the Highway Trust Fund pursuant to this section is a contrac- tual obligation of the Government to pay the Fed- eral share of the cost of the project.

83 (2) GRANTS FINANCED FROM GENERAL FUND.—A grant or contract that is approved by the Secretary and financed with amounts appropriated in ad- vance from the General Fund of the Treasury pur- suant to this section is a contractual obligation of the Government to pay the Federal share of the cost of the project only to the extent that amounts are appropriated for such purpose by an Act of Congress. (g) AVAILABILITY OF AMOUNTS.—Amounts made avail- able by or appropriated under subsections (b), (c), and (d) shall remain available until expended. SECTION 5339.311 ALTERNATIVES ANALYSIS PROGRAM. (a) GRANTS AND AGREEMENTS.—Under criteria estab- lished by the Secretary, the Secretary may award grants to States, authorities of the States, metropolitan planning organizations, and local governmental au- thorities to develop alternatives analyses as defined by section 5309(a)(1). (b) GOVERNMENT’S SHARE OF COSTS.—The Govern- ment’s share of the cost of an activity funded using amounts made available under this section may not exceed 80 percent of the cost of the activity. (c) AVAILABILITY OF FUNDS.—An amount made avail- able or appropriated under section 5338(b)(2)(L) for this section shall remain available for 3 fiscal years, includ- ing the fiscal year in which the amount is made avail- able or appropriated. Any of such amounts that are un- obligated at the end of the 3-fiscal-year period may be used by the Secretary for any purpose under this sec- tion. SECTION 5340.312 APPORTIONMENTS BASED ON GROWING STATES AND HIGH DENSITY STATES FORMULA FACTORS. (a) DEFINITION.—In this section, the term “State” shall mean each of the 50 States of the United States. (b) ALLOCATION.—Of the amounts made available for each fiscal year under section 5338(b)(2)(M), the Secre- tary shall apportion— (1) 50 percent to States and urbanized areas in accordance with subsection (c); and 311 Sec. 3037(a) of Pub. L. No. 109-59 amended this section generally. Before amendment, § 5339 read: Effective for funds not yet expended on the effective date of this section, the Federal share for funds under this chapter for a grantee named in section 603(14) of Pub. L. No. 97-468 shall be the same as the Federal share under 23 U.S.C. section 120(b) for Federal aid highway funds apportioned to the State in which it operates. Sec. 356 of the Department of Transportation and Related Agencies Appropriations Act, 2003 (div. I of Pub. L. No. 108-7) first inserted § 5339. The provision did not specify a section title. 312 Sec. 3038(a) of Pub. L. No. 109-59 added this section. (2) 50 percent to States and urbanized areas in accordance with subsection (d). (c) GROWING STATE APPORTIONMENTS.— (1) APPORTIONMENT AMONG STATES.—The amounts apportioned under subsection (b)(1) shall provide each State with an amount equal to the to- tal amount apportioned multiplied by a ratio equal to the population of that State forecast for the year that is 15 years after the most recent decennial census, divided by the total population of all States forecast for the year that is 15 years after the most recent decennial census. Such forecast shall be based on the population trend for each State be- tween the most recent decennial census and the most recent estimate of population made by the Secretary of Commerce. (2) APPORTIONMENTS BETWEEN URBANIZED AREAS AND OTHER THAN URBANIZED AREAS IN EACH STATE.— (A) IN GENERAL.—The Secretary shall appor- tion amounts to each State under paragraph (1) so that urbanized areas in that State re- ceive an amount equal to the amount appor- tioned to that State multiplied by a ratio equal to the sum of the forecast population of all ur- banized areas in that State divided by the total forecast population of that State. In making the apportionment under this subparagraph, the Secretary shall utilize any available fore- casts made by the State. If no forecasts are available, the Secretary shall utilize data on urbanized areas and total population from the most recent decennial census. (B) REMAINING AMOUNTS.—Amounts remain- ing for each State after apportionment under subparagraph (A) shall be apportioned to that State and added to the amount made available for grants under section 5311. (3) APPORTIONMENTS AMONG URBANIZED AREAS IN EACH STATE.—The Secretary shall apportion amounts made available to urbanized areas in each State under paragraph (2)(A) so that each urban- ized area receives an amount equal to the amount apportioned under paragraph (2)(A) multiplied by a ratio equal to the population of each urbanized area divided by the sum of populations of all urbanized areas in the State. Amounts apportioned to each urbanized area shall be added to amounts appor- tioned to that urbanized area under section 5336, and made available for grants under section 5307. (d) HIGH DENSITY STATE APPORTIONMENTS.—Amounts to be apportioned under subsection (b)(2) shall be ap- portioned as follows: (1) ELIGIBLE STATES.—The Secretary shall desig- nate as eligible for an apportionment under this subsection all States with a population density in excess of 370 persons per square mile. (2) STATE URBANIZED LAND FACTOR.—For each State qualifying for an apportionment under para- graph (1), the Secretary shall calculate an amount equal to—

84 (A) the total land area of the State (in square miles); multiplied by (B) 370; multiplied by (C)(i) the population of the State in urban- ized areas; divided by (ii) the total population of the State. (3) STATE APPORTIONMENT FACTOR.—For each State qualifying for an apportionment under para- graph (1), the Secretary shall calculate an amount equal to the difference between the total population of the State less the amount calculated in para- graph (2). (4) STATE APPORTIONMENT.—Each State qualify- ing for an apportionment under paragraph (1) shall receive an amount equal to the amount to be appor- tioned under this subsection multiplied by the amount calculated for the State under paragraph (3) divided by the sum of the amounts calculated under paragraph (3) for all States qualifying for an apportionment under paragraph (1). (5) APPORTIONMENTS AMONG URBANIZED AREAS IN EACH STATE.—The Secretary shall apportion amounts made available to each State under para- graph (4) so that each urbanized area receives an amount equal to the amount apportioned under paragraph (4) multiplied by a ratio equal to the population of each urbanized area divided by the sum of populations of all urbanized areas in the State. Amounts apportioned to each urbanized area shall be added to amounts apportioned to that ur- banized area under section 5336, and made avail- able for grants under section 5307. (b) GOVERNMENT'S SHARE.—When there would be a clear and direct financial benefit to an entity under a grant or contract financed under subsection (a) of this section, the Secre- tary shall establish a United States Govern- ment share consistent with the benefit.

85