State Transportation Flexibility Act

II 117TH CONGRESS 1ST SESSION S. 1066 To free States to spend gas taxes on their transportation priorities, and for other purposes. IN THE SENATE OF THE UNITED STATES APRIL 12, 2021 Mr. PORTMAN introduced the following bill; which was read twice and referred to the Committee on Environment and Public Works A BILL To free States to spend gas taxes on their transportation priorities, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘State Transportation 4 Flexibility Act’’. 5 SEC. 2. DIRECT FEDERAL-AID HIGHWAY PROGRAM. 6 (a) IN GENERAL.—Chapter 1 of title 23, United 7 States Code, is amended by adding at the end the fol- 8 lowing: 9 VerDate Sep 11 2014 01:31 Apr 27, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1066.IS S1066 kjohnson on DSK79L0C42PROD with BILLS 2 •S 1066 IS ‘‘§ 171. Direct Federal-aid highway program 1 ‘‘(a) ELECTION BY STATE NOT TO PARTICIPATE.— 2 Notwithstanding any other provision of law and in accord- 3 ance with this section, a State may elect not to participate 4 in any Federal program relating to highways, including 5 a Federal highway program under the Safe, Accountable, 6 Flexible, Efficient Transportation Equity Act: A Legacy 7 for Users (Public Law 109–59; 119 Stat. 1144), the Mov- 8 ing Ahead for Progress in the 21st Century Act (Public 9 Law 112–141; 126 Stat. 405), the Fixing America’s Sur- 10 face Transportation Act (Public Law 114–94; 129 Stat. 11 1312), this title, or title 49. 12 ‘‘(b) DIRECT FEDERAL-AID HIGHWAY PROGRAM.— 13 ‘‘(1) IN GENERAL.—The Secretary shall carry 14 out a direct Federal-aid highway program (referred 15 to in this section as the ‘program’) in accordance 16 with the requirements of this section under which 17 the legislature of a State may elect, not fewer than 18 90 days before the beginning of a fiscal year— 19 ‘‘(A) to waive the right of the State to re- 20 ceive amounts apportioned or allocated to the 21 State under this chapter for the fiscal year to 22 which the election relates; and 23 ‘‘(B) to receive an amount for that fiscal 24 year that is determined in accordance with sub- 25 section (e) for that fiscal year. 26 VerDate Sep 11 2014 01:31 Apr 27, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1066.IS S1066 kjohnson on DSK79L0C42PROD with BILLS 3 •S 1066 IS ‘‘(2) EFFECT.—On making an election under 1 paragraph (1), a State— 2 ‘‘(A) assumes all Federal obligations relat- 3 ing to each program that is the subject of the 4 election; and 5 ‘‘(B) shall fulfill those obligations using 6 the amounts transferred to the State under 7 subsection (e). 8 ‘‘(3) ELIGIBLE YEARS.—A State may make an 9 election with respect to fiscal year 2022 and any fis- 10 cal year thereafter. 11 ‘‘(c) STATE RESPONSIBILITY.— 12 ‘‘(1) IN GENERAL.—The Governor of a State 13 making an election under subsection (b) shall— 14 ‘‘(A) agree to maintain the Interstate Sys- 15 tem in accordance with the current Interstate 16 System program; 17 ‘‘(B) submit a plan to the Secretary de- 18 scribing— 19 ‘‘(i) the purposes, projects, and uses 20 to which amounts received under the pro- 21 gram will be put; and 22 ‘‘(ii) which programmatic require- 23 ments of this title the State elects to con- 24 tinue; 25 VerDate Sep 11 2014 01:31 Apr 27, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1066.IS S1066 kjohnson on DSK79L0C42PROD with BILLS 4 •S 1066 IS ‘‘(C) agree to obligate or expend amounts 1 received under the program exclusively for 2 projects that would be eligible for funding 3 under section 133(b) if the State was not par- 4 ticipating in the program; and 5 ‘‘(D) agree— 6 ‘‘(i) to report annually to the Sec- 7 retary on the use of amounts received 8 under the program; and 9 ‘‘(ii) to make the report available to 10 the public in an easily accessible format. 11 ‘‘(2) NO FEDERAL LIMITATION ON USE OF 12 FUNDS.—Except as provided in paragraph (1), the 13 expenditure or obligation of funds received by a 14 State under the program shall not be subject to any 15 Federal requirement under this title (except for this 16 section), title 49, or any other Federal law (includ- 17 ing regulations). 18 ‘‘(3) ELECTION IRREVOCABLE.—An election 19 under subsection (b) shall be irrevocable during the 20 applicable fiscal year. 21 ‘‘(d) EFFECT ON PREEXISTING COMMITMENTS.—An 22 election under subsection (b) shall not affect any responsi- 23 bility or commitment of the State under this title for any 24 fiscal year with respect to— 25 VerDate Sep 11 2014 01:31 Apr 27, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1066.IS S1066 kjohnson on DSK79L0C42PROD with BILLS 5 •S 1066 IS ‘‘(1) a project or program funded under this 1 title (other than under this section); or 2 ‘‘(2) any project or program funded under this 3 title in any fiscal year for which an election under 4 subsection (b) is not in effect. 5 ‘‘(e) TRANSFERS.— 6 ‘‘(1) IN GENERAL.—The amount to be trans- 7 ferred to a State under the program for a fiscal year 8 shall be the portion of the taxes appropriated to the 9 Highway Trust Fund (other than for the Mass 10 Transit Account) for that fiscal year that is attrib- 11 utable to highway users in that State during that 12 fiscal year, reduced by a pro rata share withheld by 13 the Secretary to fund contract authority for pro- 14 grams of the National Highway Traffic Safety Ad- 15 ministration and the Federal Motor Carrier Safety 16 Administration. 17 ‘‘(2) TRANSFERS UNDER PROGRAM.— 18 ‘‘(A) IN GENERAL.—Transfers under the 19 program— 20 ‘‘(i) shall be made at the same time as 21 deposits to the Highway Trust Fund are 22 made by the Secretary of the Treasury; 23 and 24 ‘‘(ii) shall— 25 VerDate Sep 11 2014 01:31 Apr 27, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1066.IS S1066 kjohnson on DSK79L0C42PROD with BILLS 6 •S 1066 IS ‘‘(I) be made on the basis of esti- 1 mates by the Secretary, in consulta- 2 tion with the Secretary of the Treas- 3 ury, based on the most recent data 4 available; and 5 ‘‘(II) include proper adjustments 6 in amounts subsequently transferred 7 to the extent prior estimates were in 8 excess of, or less than, the amounts 9 required to be transferred. 10 ‘‘(B) LIMITATION.— 11 ‘‘(i) IN GENERAL.—An adjustment 12 under subparagraph (A)(ii)(II) to any 13 transfer may not exceed 5 percent of the 14 transferred amount to which the adjust- 15 ment relates. 16 ‘‘(ii) ADJUSTMENT GREATER THAN 5 17 PERCENT.—If the adjustment required 18 under subparagraph (A)(ii)(II) exceeds the 19 percentage described in clause (i), the ex- 20 cess shall be taken into account in making 21 subsequent adjustments under subpara- 22 graph (A)(ii)(II). 23 ‘‘(f) APPLICATION WITH OTHER AUTHORITY.—Any 24 contract authority under this chapter (and any obligation 25 VerDate Sep 11 2014 01:31 Apr 27, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1066.IS S1066 kjohnson on DSK79L0C42PROD with BILLS 7 •S 1066 IS limitation) authorized for a State for a fiscal year for 1 which an election by that State is in effect under sub- 2 section (b)— 3 ‘‘(1) shall be rescinded or canceled; and 4 ‘‘(2) shall not be reallocated or distributed to 5 any other State under this chapter. 6 ‘‘(g) MAINTENANCE OF EFFORT.— 7 ‘‘(1) IN GENERAL.—Not later than 30 days 8 after the date on which an amount is distributed to 9 a State or State agency under the program, the Gov- 10 ernor of the State shall certify to the Secretary that 11 the State will maintain the effort of the State with 12 regard to State funding for the types of projects 13 that are funded by the amounts distributed. 14 ‘‘(2) AMOUNTS.—As part of the certification 15 under paragraph (1), the Governor shall submit to 16 the Secretary a statement that identifies the amount 17 of funds the State plans to expend from State 18 sources during the covered period for the types of 19 projects that are funded by the amounts. 20 ‘‘(h) TREATMENT OF GENERAL REVENUES.—For 21 purposes of this section, any general revenue funds appro- 22 priated to the Highway Trust Fund shall be transferred 23 to a State under the program in the manner described 24 in subsection (e)(1).’’. 25 VerDate Sep 11 2014 01:31 Apr 27, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1066.IS S1066 kjohnson on DSK79L0C42PROD with BILLS 8 •S 1066 IS (b) CLERICAL AMENDMENT.—The analysis for chap- 1 ter 1 of title 23, United States Code, is amended by insert- 2 ing after the item relating to section 170 the following: 3 ‘‘171. Direct Federal-aid highway program.’’. SEC. 3. ALTERNATIVE FUNDING OF PUBLIC TRANSPOR- 4 TATION PROGRAMS. 5 (a) IN GENERAL.—Chapter 53 of title 49, United 6 States Code, is amended by adding at the end the fol- 7 lowing: 8 ‘‘§ 5341. Alternative funding of public transportation 9 programs 10 ‘‘(a) DEFINITIONS.—In this section— 11 ‘‘(1) the term ‘alternative funding program’ 12 means the program established under subsection (c); 13 ‘‘(2) the term ‘covered program’ means a Fed- 14 eral public transportation program that is funded 15 using amounts made available from the Mass Tran- 16 sit Account of the Highway Trust Fund; and 17 ‘‘(3) the term ‘Federal public transportation 18 program’ means a Federal program that provides 19 funding for public transportation, including under— 20 ‘‘(A) the Safe, Accountable, Flexible, Effi- 21 cient Transportation Equity Act: A Legacy for 22 Users (Public Law 109–59; 119 Stat. 1144); 23 VerDate Sep 11 2014 01:31 Apr 27, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1066.IS S1066 kjohnson on DSK79L0C42PROD with BILLS 9 •S 1066 IS ‘‘(B) the Moving Ahead for Progress in the 1 21st Century Act (Public Law 112–141; 126 2 Stat. 405); 3 ‘‘(C) the Fixing America’s Surface Trans- 4 portation Act (Public Law 114–94; 129 Stat. 5 1312); 6 ‘‘(D) title 23; or 7 ‘‘(E) this chapter. 8 ‘‘(b) ELECTION BY STATE NOT TO PARTICIPATE.— 9 Notwithstanding any other provision of law and in accord- 10 ance with this section, a State may elect not to participate 11 in any covered program. 12 ‘‘(c) PUBLIC TRANSPORTATION ALTERNATIVE FUND- 13 ING PROGRAM.— 14 ‘‘(1) IN GENERAL.—The Secretary shall carry 15 out a public transportation alternative funding pro- 16 gram in accordance with the requirements of this 17 section under which the legislature of a State may 18 elect, not fewer than 90 days before the beginning 19 of a fiscal year— 20 ‘‘(A) to waive the right of the State to re- 21 ceive amounts apportioned or allocated to the 22 State under the covered programs for the fiscal 23 year to which the election relates; and 24 VerDate Sep 11 2014 01:55 Apr 29, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1066.IS S1066 kjohnson on DSK79L0C42PROD with BILLS 10 •S 1066 IS ‘‘(B) to receive an amount for that fiscal 1 year that is determined in accordance with sub- 2 section (f). 3 ‘‘(2) EFFECT.—On making an election under 4 paragraph (1), a State— 5 ‘‘(A) assumes all Federal obligations relat- 6 ing to each covered program; and 7 ‘‘(B) shall fulfill those obligations using 8 the amounts transferred to the State under 9 subsection (f). 10 ‘‘(3) ELIGIBLE YEARS.—A State may make an 11 election with respect to fiscal year 2022 and any fis- 12 cal year thereafter. 13 ‘‘(d) STATE RESPONSIBILITY.— 14 ‘‘(1) IN GENERAL.—The Governor of a State 15 that participates in the alternative funding program 16 shall— 17 ‘‘(A) submit a plan to the Secretary that 18 describes— 19 ‘‘(i) the purposes, projects, and uses 20 to which amounts received under the alter- 21 native funding program will be put; and 22 ‘‘(ii) which programmatic require- 23 ments of the covered programs the State 24 elects to continue; 25 VerDate Sep 11 2014 01:31 Apr 27, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1066.IS S1066 kjohnson on DSK79L0C42PROD with BILLS 11 •S 1066 IS ‘‘(B) agree to obligate or expend amounts 1 received under the alternative funding program 2 exclusively for projects that would be eligible for 3 funding under the covered programs if the 4 State was not participating in the alternative 5 funding program; 6 ‘‘(C) submit to the Secretary an annual re- 7 port on the use of amounts received under the 8 alternative funding program; and 9 ‘‘(D) make the annual report available to 10 the public in an easily accessible format. 11 ‘‘(2) NO FEDERAL LIMITATION ON USE OF 12 FUNDS.—Except as provided in paragraph (1), the 13 expenditure or obligation of funds received by a 14 State under the alternative funding program shall 15 not be subject to the requirements of— 16 ‘‘(A) this chapter (except for this section); 17 ‘‘(B) any covered program not under this 18 chapter; 19 ‘‘(C) title 23; or 20 ‘‘(D) any other Federal law (including reg- 21 ulations). 22 ‘‘(3) ELECTION IRREVOCABLE.—An election 23 under subsection (c) shall be irrevocable during the 24 applicable fiscal year. 25 VerDate Sep 11 2014 01:31 Apr 27, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S1066.IS S1066 kjohnson on DSK79L0C42PROD with BILLS 12 •S 1066 IS ‘‘(e) EFFECT ON PREEXISTING COMMITMENTS.—An 1 election by a State under subsection (c) shall not affect 2 any responsibility or commitment of the State with respect 3 to a project or program funded under a covered program 4 in a fiscal year for which an election under subsection (c) 5 is not in effect. 6 ‘‘(f) TRANSFERS.— 7 ‘‘(1) IN GENERAL.—The amount to be trans- 8 ferred to a State under the alternative funding pro- 9 gram for a fiscal year shall be the portion of the 10 taxes transferred to the Mass Transit Account of the 11 Highway Trust Fund under section 9503(e) of the 12 Internal Revenue Code of 1986 for that fiscal year 13 that is attributable to highway users in that State 14 during that fiscal year. 15 ‘‘(2) TRANSFERS UNDER PROGRAM.— 16 ‘‘(A) IN GENERAL.—Transfers under the 17 alternative funding program— 18 ‘‘(i) shall be made at the same time as 19 transfers to the Mass Transit Account of 20 the Highway Trust Fund are made by the 21 Secretary of the Treasury; and 22 ‘‘(ii) shall— 23 ‘‘(I) be made on the basis of esti- 24 mates by the Secretary, in consulta- 25 VerDate Sep 11 2014 01:31 Apr 27, 2021 Jkt 019200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S1066.IS S1066 kjohnson on DSK79L0C42PROD with BILLS 13 •S 1066 IS tion with the Secretary of the Treas- 1 ury, based on the most recent data 2 available; and 3 ‘‘(II) include proper adjustments 4 in amounts subsequently transferred 5 under the alternative funding pro- 6 gram, to the extent prior estimates 7 were in excess of, or less than, the 8 amounts requ [Text truncated for display. 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