II
112th CONGRESS
1st Session
S. 1230
IN THE SENATE OF THE UNITED STATES
June 16, 2011
Mr. Durbin introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation
A BILL
To secure public investments in transportation infrastructure.
Short title
This Act may be cited as
the Protecting Taxpayers in
Transportation Asset Transfers Act
.
Definitions
In this Act:
Asset transaction
The term asset transaction means—
a concession agreement for a public transportation asset; or
a contract for the sale or lease of a public transportation asset between the State or local government with jurisdiction over the public transportation asset and a private individual or entity.
Concession agreement
In general
The term concession agreement means an agreement entered into by a private individual or entity and a State or local government with jurisdiction over a public transportation asset to convey to the private individual or entity the right to manage, operate, and maintain the public transportation asset for a specific period of time in exchange for the authorization to impose and collect a toll or other user fee from a person for each use of the public transportation asset during that period.
Exclusion
The term concession agreement does not include an agreement entered into by a State or local government and a private individual or entity for the construction of any new public transportation asset.
Public transportation asset
In general
The term public transportation asset means a transportation facility of any kind that was or is constructed, maintained, or upgraded before, on, or after the date of enactment of this Act using Federal funds—
the fair market value of which is more than $500,000,000, as determined by the Secretary; and
that has received any Federal funding, as of the date on which the determination is made;
the fair market value of which is less than or equal to $500,000,000, as determined by the Secretary; and
that has received $25,000,000 or more in Federal funding, as of the date on which the determination is made; or
in which a significant national pubic interest (such as interstate commerce, homeland security, public health, or the environment) is at stake, as determined by the Secretary.
Inclusions
The term public transportation asset includes a transportation facility described in subparagraph (A) that is—
a Federal-aid highway (as defined in section 101 of title 23, United States Code);
a highway or mass transit project constructed using amounts made available from the Highway Account or Mass Transit Account, respectively, of the Highway Trust Fund;
an air navigation facility (as defined in section 40102(a) of title 49, United States Code); or
a train station or multimodal station that receives a Federal grant, including any grant authorized under the Passenger Rail Investment and Improvement Act of 2008 (Public Law 110–432; 122 Stat. 4907) or an amendment made by that Act.
Secretary
The term Secretary means the Secretary of Transportation.
Program to secure public investments in transportation infrastructure
Establishment
Not later than 180 days after the date of enactment of this Act, the Secretary shall establish a program under which a Federal lien shall be attached to each public transportation asset.
Prohibition on sales and leases
In general
A public transportation asset to which a lien is attached under subsection (a) may not be the subject of any asset transaction unless—
the lien is released in accordance with paragraph (2);
the private individual or entity seeking the asset transaction enters into an agreement with the Secretary described in paragraph (3)(A)(i); and
the State or local government or other public sponsor seeking the asset transaction enters into an agreement with the Secretary described in paragraph (3)(A)(ii);
the Secretary publishes a disclosure in accordance with paragraph (4); and
the State or local government seeking the asset transaction provides for public notice and an opportunity to comment on the proposed asset transaction.
Release of liens
In general
A lien on a public transportation asset described in paragraph (1) may be released only if—
the State or local government or other public sponsor seeking the asset transaction for the public transportation asset pays to the Secretary an amount determined by the Secretary under subparagraph (B); and
the Secretary certifies that the required agreements described in paragraph (3) have been signed, and the terms of the agreements incorporated into the terms of the asset transaction, for the public transportation asset.
Determination of repayment amount
The Secretary shall determine the amount that is required to be paid for the release of a Federal lien on a public transportation asset under this paragraph, taking into account, at a minimum—
the total amount of Federal funds that have been expended to construct, maintain, or upgrade the public transportation asset;
the amount of Federal funding received by a State or local government based on inclusion of the public transportation asset in calculations using Federal funding formulas or for Federal block grants;
the reasonable depreciation of the public transportation asset, including the amount of Federal funds described in clause (i) that may be offset by that depreciation; and
the loss of Federal tax revenue from bonds relating to, and the tax consequences of depreciation of, the public transportation asset.
Agreements
In general
As a condition of any new or renewed asset transaction for a public transportation asset—
the private individual or entity seeking the asset transaction shall enter into an agreement with the Secretary, which shall be incorporated into the terms of the asset transaction, under which the private individual or entity agrees—
to disclose and eliminate any conflict of interest involving any party to the agreement;
to adequately maintain the condition and performance of the public transportation asset during the term of the asset transaction; and
on the end of the term of the asset transaction, to return the public transportation asset to the applicable State or local government in a state of good repair;
to disclose an estimated amount of tax benefits and financing transactions over the life of the lease resulting from the lease or sale of the public transportation asset;
to disclose anticipated changes in the workforce and wages, benefits, or rules over the life of the lease and an estimate of the amount of savings from those changes; and
to provide an estimate of the revenue the transportation asset will produce for the private entity during the lease or sale period; and
the State or local government or other public sponsor seeking the asset transaction for the public transportation asset shall enter into an agreement with the Secretary, which shall be incorporated into the terms of the asset transaction, under which the State or local government or other public sponsor agrees—
to pay to the Secretary the amount determined by the Secretary under paragraph (2)(B);
to conduct an assessment of whether, and provide justification that, the asset transaction with the private entity would represent a better public and financial benefit than a similar transaction using public funding or with a public (as opposed to private) entity, including an assessment of—
the loss of toll revenues and other user fees relating to the public transportation asset; and
any impacts on other public transportation assets in the vicinity of the public transportation asset covered by the asset transaction;
that, if the private individual or entity enters into bankruptcy, becomes insolvent, or fails to comply with all terms and conditions of the asset transaction—
the asset transaction shall immediately terminate; and
the interest in the public transportation asset conveyed by the asset transaction will immediately revert to the public sponsor;
to provide an estimate of all increased tolls and other user fees that may be charged to persons using the public transportation asset during the term of the asset transaction;
to disclose any plans the State or local government seeking the asset transaction has for up-front payments or concessions from the private individual or entity seeking the asset transaction;
that the Federal Government and the applicable State and local governments will retain respective authority and control over decisions regarding transportation planning and management; and
to prominently post or display the agreement on the website of the local government or public sponsor.
Term
An agreement under this paragraph shall not exceed a reasonable term, as determined by the Secretary, in consultation with the relevant State or local government.
Publication of disclosure
Not later than 90 days before the date on which an asset transaction covering a public transportation asset takes effect, the Secretary shall publish in the Federal Register a notice that contains—
a copy of all agreements relating to the asset transaction between the Secretary and the public and private sponsors involved;
a description of the total amount of Federal funds that have been expended as of the date of publication of the notice to construct, maintain, or upgrade the public transportation asset;
the determination of the repayment amount under paragraph (2)(B) for the public transportation asset;
the amount of Federal funding received by a State or local government based on inclusion of the public transportation asset in calculations using Federal funding formulas or for Federal block grants; and
a certification that the asset transaction will not adversely impact the national public interest of the United States (including the interstate commerce, homeland security, public health, and environment of the United States).
Renewal of asset transaction
An asset transaction that expires or terminates may be renewed only if—
the Secretary—
calculates a new repayment amount under paragraph (2)(B) required for renewal, as the Secretary determines to be appropriate;
takes into consideration the impact of a renewed agreement on nearby public transportation assets; and
publishes a new disclosure for the renewed agreement in accordance with paragraph (4); and
the State or local government seeking to renew the asset transaction—
provides for public notice and an opportunity to comment on the proposed renewal;
pays to the Secretary the new amount calculated by the Secretary pursuant to subparagraph (A)(i); and
enters into a new agreement in accordance with paragraph (3) for the renewal.
Amtrak
In general
Subject to paragraph (2), the Secretary may permit a private individual or entity to enter into an asset transaction covering all or any portion of the facilities and equipment of the National Railroad Passenger Corporation (referred to in this subsection as Amtrak).
Conditions
A private individual or entity that seeks to enter into an asset transaction described in paragraph (1) shall agree—
to enter into an agreement described in subsection (b)(3) with the Secretary covering the asset transaction; and
to pay to the Secretary an amount equal to the amount of Federal funds provided for Amtrak during the period of fiscal year 1971 through the fiscal year in which an agreement described in subsection (b)(3) covering the asset transaction is entered into, as adjusted by, as determined by the Secretary—
the reasonable depreciation of the portion of Amtrak facilities and equipment covered by the agreement, including that amount of Federal funds provided for Amtrak that may be offset by that depreciation;
the amount of Federal funding received by a State or local government to upgrade any capital facilities owned or operated by Amtrak to facilitate passenger rail service; and
the loss of Federal tax revenue from bonds, Federal financing, or any tax advantages granted to Amtrak since fiscal year 1971, including financing and bonding covered by or provided under the Taxpayer Relief Act of 1997 (Public Law 105–34; 111 Stat. 788) or an amendment made by that Act.
Term, disclosure, and renewal
Paragraphs (3)(B), (4), and (5) of subsection (b) shall apply to an asset transaction entered into under this subsection.
Use of funds by Secretary
Funds received by the Secretary as a payment under paragraph (2)(A)(i) or (5)(B)(ii) of subsection (b) or subsection (c)(2)(B) shall be available to and used by the Secretary, without further appropriation and to remain available until expended, for transportation projects and activities in the same transportation mode as the mode of the public transportation asset for which the payment was received.
Regulations
Not later than 180 days after the date of enactment of this Act, the Secretary shall promulgate such regulations as are necessary to implement this Act.
Report to Congress
Not later than 180 days after the date of enactment of this Act, and annually thereafter, the Secretary shall submit to Congress and publish in the Federal Register a report that describes each public transportation asset that is the subject of an asset transaction during the year covered by the report, including the total amount of Federal funds that were received by a State or local government to construct, maintain, or upgrade the public transportation asset as of the date of submission of the report.
Authorization of appropriations
There are authorized to be appropriated to carry out this Act such sums as are necessary.
Budgetary effects
The budgetary effects
of this Act, for the purpose of complying with the Statutory Pay-As-You-Go Act
of 2010, shall be determined by reference to the latest statement titled
Budgetary Effects of PAYGO Legislation
for this Act, submitted
for printing in the Congressional Record by the Chairman of the Senate Budget
Committee, provided that such statement has been submitted prior to the vote on
passage.