S.Amdt. 1766

SA 1766. Mr. BROWN of Ohio (for himself and Mr. Merkley) submitted an
amendment intended to be proposed to amendment SA 1761 proposed by Mr.
Reid to the bill S. 1813, to reauthorize Federal-aid highway and
highway safety construction programs, and for other purposes; which was
ordered to lie on the table; as follows:

Beginning on page 232, strike line 17 and all that follows
through page 248, line 6, and insert the following:

SEC. 20017. REQUIREMENTS FOR PUBLIC TRANSPORTATION PROJECTS.

(a) General Provisions.--Section 5323 of title 49, United
States Code, is amended to read as follows:

``Sec.  5323. General provisions

``(a) Interests in Property.--
``(1) 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 determines that such financial
assistance is essential to a program of projects required
under sections 5303 and 5304;
``(B) the Secretary determines that the program provides
for the participation of private companies engaged in public
transportation to the maximum extent feasible; and
``(C) just compensation under State or local law will be
paid to the company for its franchise or property.
``(2) 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 another governmental authority in the
same geographic area.
``(b) 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.
``(c) Consideration of Economic, Social, and Environmental
Interests.--
``(1) Cooperation and consultation.--In carrying out the
goal described in section 5301(c)(2), the Secretary shall
cooperate and consult with the Secretary of the Interior and
the Administrator of the Environmental Protection Agency on
each project that may have a substantial impact on the
environment.
``(2) Compliance with nepa.--The National Environmental
Policy Act of 1969 (42 U.S.C. 4321 et seq.) shall apply to
financial assistance for capital projects under this chapter.
``(d) Corridor Preservation.--
``(1) In general.--The Secretary may assist a recipient in
acquiring right-of-way before the completion of the
environmental reviews for any project that may use the right-
of-way if the acquisition 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.--Right-of-way acquired under
this subsection may not be developed in anticipation of the
project until all required environmental reviews for the
project have been completed.
``(e) Condition on Charter Bus Transportation Service.--
``(1) Agreements.--Financial assistance under this chapter
may be used to buy or operate 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 transportation for the governmental authority will not
provide charter bus transportation service outside the urban
area in which it provides regularly scheduled public
transportation service. An agreement shall provide for a fair
arrangement the Secretary of Transportation considers
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 private operator can
provide the service.
``(2) Violations.--
``(A) Investigations.--On receiving a complaint about a
violation of the agreement required 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, 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.
``(f) Bond Proceeds Eligible for Local Share.--
``(1) Use as local matching funds.--Notwithstanding any
other provision of law, a recipient of assistance under
section 5307, 5309, or 5337 may use the proceeds from the
issuance of revenue bonds as part of the local matching funds
for a capital project.
``(2) Maintenance of effort.--The Secretary shall approve
of the use of the proceeds from the issuance 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
authorities 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(3)(J) from amounts made available to the
recipient under section 5309.
``(g) School Bus Transportation.--
``(1) 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 school bus
transportation that exclusively transports students and
school personnel in competition with a private school bus
operator. 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 school bus
program for the school system; and
``(B) unless a private school bus operator can provide
adequate transportation that complies with applicable safety
standards at reasonable rates.
``(2) Violations.--If the Secretary finds that an
applicant, governmental authority, or publicly owned operator
has violated the agreement required under paragraph (1), the
Secretary shall bar a recipient or an operator from receiving
Federal transit assistance in an amount the Secretary
considers appropriate.
``(h) Buying Buses Under Other Laws.--Subsections (e) and
(g) of this section apply to financial assistance to buy a
bus under sections 133 and 142 of title 23.
``(i) Grant and Loan Prohibitions.--A grant or loan may not
be used to--
``(1) pay ordinary governmental or nonproject operating
expenses; or
``(2) support a procurement that uses an exclusionary or
discriminatory specification.
``(j) Government Share of Costs for Certain Projects.--A
grant for a project to be assisted under this chapter that
involves acquiring vehicle-related equipment or facilities
required by the Americans with Disabilities Act of 1990 (42
U.S.C. 12101 et seq.) or vehicle-related equipment or
facilities (including clean fuel or alternative fuel vehicle-
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.
``(k) Buy America.--
``(1) In general.--The Secretary 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) Waiver.--The Secretary may waive paragraph (1) of
this subsection if the Secretary finds that--
``(A) applying paragraph (1) would be inconsistent 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 subcomponents 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) Buy america waiver requirements.--
``(A) Notice and comment opportunities.--
``(i) In general.--If the Secretary receives a request for
a waiver under section 313(b) of title 23, United States
Code, section 5323(j)(2)

[[Page S1366]]

of title 49, United States Code, or section 24305(f)(4),
24405(a)(2), or 50101(b) of such title, the Secretary shall
provide notice of, and an opportunity for public comment on,
the request not later than 30 days before making a finding
based on such request.
``(ii) Notice requirements.--Each notice provided under
clause (i)--

``(I) shall include the information available to the
Secretary concerning the request, including the requestor's
justification for such request; and
``(II) shall be provided electronically, including on the
official public Internet website of the Department.

``(B) Publication of detailed justification.--If the
Secretary issues a waiver pursuant to the authority granted
under a provision referenced in subparagraph (A)(i), the
Secretary shall publish, in the Federal Register, a detailed
justification for the waiver that--
``(i) addresses the public comments received under
subparagraph (A)(i); and
``(ii) is published before the waiver takes effect.
``(C) Buy america reporting.--Not later than February 1,
2013, and annually thereafter, the Secretary shall submit a
report to Congress that--
``(i) specifies each highway, public transportation, or
railroad project for which the Secretary issued a waiver from
a Buy America requirement pursuant to the authority granted
under a provision referenced in subparagraph (A)(i) during
the preceding calendar year;
``(ii) identifies the country of origin and product
specifications for the steel, iron, or manufactured goods
acquired pursuant to each of the waivers specified under
clause (i); and
``(iii) summarizes the monetary value of contracts awarded
pursuant to each such waiver.
``(D) Consistency with international agreements.--This
paragraph shall be applied in a manner that is consistent
with United States obligations under relevant international
agreements.
``(E) Review of nationwide waivers.--Not later than 1 year
after the date of the enactment of the Federal Public
Transportation Act of 2012, and at least once every 5 years
thereafter, the Secretary shall review each standing
nationwide waiver issued pursuant to the authority granted
under any of the provisions referenced in subparagraph (A)(i)
to determine whether continuing such waiver is necessary.
``(4) Labor costs for final assembly.--In this subsection,
labor costs involved in final assembly are not included in
calculating the cost of components.
``(5) Waiver prohibited.--The Secretary may not make a
waiver under paragraph (2) of this subsection 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
``(B) has violated the agreement by discriminating against
goods to which this subsection applies that are produced in
the United States and to which the agreement applies.
``(6) Penalty for mislabeling and misrepresentation.--A
person is ineligible under subpart 9.4 of the Federal
Acquisition Regulation, or any successor thereto, to receive
a contract or subcontract made with amounts authorized under
the Federal Public Transportation Act of 2012 if a court or
department, agency, or instrumentality of the Government
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 subparagraph (A)
of this paragraph were produced in the United States.
``(7) State requirements.--The Secretary may not impose 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
countries in projects carried out with that assistance or
restricts a recipient of that assistance from complying with
those State-imposed requirements.
``(8) 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 noncompliance or failure to properly
complete the certification (but not including failure to sign
the certification) under this subsection if such manufacturer
or supplier attests under penalty of perjury that such
manufacturer or supplier submitted an incorrect certification
as a result of an inadvertent or clerical error. The burden
of establishing inadvertent or clerical error is on the
manufacturer or supplier.
``(9) Administrative review.--A party adversely affected by
an agency action under this subsection shall have the right
to seek review under section 702 of title 5.
``(10) Application to transit programs.--The requirements
under this subsection shall apply to all contracts for a
project carried out within the scope of the applicable
finding, determination, or decision under the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.),
regardless of the funding source of such contracts, if at
least 1 contract for the project is funded with amounts made
available to carry out this chapter.
``(l) Participation of Governmental Agencies in Design and
Delivery of Transportation Services.--Governmental agencies
and nonprofit organizations that receive assistance from
Government sources (other than the Department of
Transportation) for nonemergency transportation services
shall--
``(1) participate and coordinate with recipients of
assistance under this chapter in the design and delivery of
transportation services; and
``(2) be included in the planning for those services.
``(m) Relationship to Other Laws.--
``(1) Fraud and false statements.--Section 1001 of title 18
applies to a certificate, submission, or statement provided
under this chapter. The Secretary may terminate 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 connection with a Federal public
transportation program.
``(2) Political activities of nonsupervisory employees.--
The provision of assistance under this chapter shall not be
construed to require the application of chapter 15 of title 5
to any nonsupervisory employee of a public transportation
system (or any other agency or entity performing related
functions) to whom such chapter does not otherwise apply.
``(n) Preaward and Postdelivery Review of Rolling Stock
Purchases.--The Secretary shall prescribe regulations
requiring a preaward and postdelivery review of a grant under
this chapter to buy rolling stock to ensure compliance with
Government motor vehicle safety requirements, subsection (k)
of this section, and bid specifications requirements of grant
recipients under this chapter. Under this subsection,
independent inspections and review are required, and a
manufacturer certification is not sufficient. 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 Federal Regulations.
``(o) Submission of Certifications.--A certification
required under this chapter and any additional certification
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 required under this chapter with the
publication required under section 5336(d)(2).
``(p) Grant Requirements.--The grant requirements under
sections 5307, 5309, and 5337 apply to any project under this
chapter that receives any assistance or other financing under
chapter 6 (other than section 609) of title 23.
``(q) Alternative Fueling Facilities.--A recipient of
assistance under this chapter may allow the incidental 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, capital, and
operating expenses that are incurred in providing public
transportation; and
``(4) private entities pay all applicable excise taxes on
fuel.
``(r) Fixed Guideway Categorical Exclusion.--
``(1) Study.--Not later than 6 months after the date of
enactment of the Federal Public Transportation Act of 2012,
the Secretary shall conduct a study to determine the
feasibility of providing a categorical exclusion for
streetcar, bus rapid transit, and light rail projects located
within an existing transportation right-of-way from the
requirements of the National Environmental Policy Act of 1969
(42 U.S.C. 4321 et seq.) in accordance with the Council on
Environmental Quality implementing regulations under parts
1500 through 1508 of title 40, Code of Federal Regulations,
or any successor thereto.
``(2) Findings and rules.--Not later than 1 year after the
date of enactment of the Federal Public Transportation Act of
2012, the Secretary shall issue findings and, if appropriate,
issue rules to provide categorical exclusions for suitable
categories of projects.''.
(b) Buy America Provisions.--
(1) Surface transportation.--Section 313 of title 23,
United States Code, is amended by adding at the end the
following:
``(g) Application to Highway Programs.--The requirements
under this section shall apply to all contracts for a project
carried out within the scope of the applicable finding,
determination, or decision under the National Environmental
Policy Act of 1969 (42

[[Page S1367]]

U.S.C. 4321 et seq.), regardless of the funding source of
such contracts, if at least 1 contract for the project is
funded with amounts made available to carry out this
title.''.
(2) Amtrak.--Section 24305(f) of title 49, United States
Code, is amended by adding at the end the following:
``(5) The requirements under this subsection shall apply to
all contracts for a project carried out within the scope of
the applicable finding, determination, or decision under the
National Environmental Policy Act of 1969 (42 U.S.C. 4321 et
seq.), regardless of the funding source of such contracts, if
at least 1 contract for the project is funded with amounts
made available to carry out this chapter.''.
(3) Application to intercity passenger rail service
corridors.--Section 24405(a) of title 49, United States Code,
is amended--
(A) by striking paragraph (4);
(B) by redesignating paragraphs (5) through (11) as
paragraphs (4) through (10), respectively; and
(C) by adding at the end the following:
``(11) The requirements under this subsection shall apply
to all contracts eligible for Federal funding for a project
carried out within the scope of the applicable finding,
determination, or decision under the National Environmental
Policy Act of 1969 (42 U.S.C. 4321 et seq.), regardless of
the funding source of such contracts, if at least 1 contract
for the project is funded with amounts made available to
carry out this title.''.
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