Conference report on h. R. 3, Safe, accountable, flexible, efficient transportation equity act: a legacy for users

   From the Committee on Rules, for consideration of secs. 8004 and 8005 of the House bill, and modifications committed to conference:

David Dreier,

Shelley Moore Capito,

Jim McGovern,

   From the Committee on Ways and Means, for consideration of title X of the House bill, and title V of the Senate amendment, and modifications committed to conference:

William M. Thomas,

Jim McCrery,

   For consideration of the House bill and Senate amendment, and modifications committed to conference:

   JOINT EXPLANATORY KSTATEMENT OF THE COMMITTEE OF CONFERENCE

   The managers on the part of the House and the Senate at the conference on the disagreeing votes of the two Houses on the amendment of the Senate to the bill (H.R. 3), to authorize funds for Federal-aid highways, highway safety programs, and transit programs, and for other purposes, submit the following joint statement to the House and the Senate in explanation of the effect of the action agreed upon by the managers and recommended in the accompanying conference report:

   The Senate amendment to the text of the bill struck all of the House bill after the enacting clause and inserted a substitute text.

   The House recedes from its disagreement to the amendment of the Senate with an amendment that is a substitute for the House bill and the Senate amendment. The difference between the House bill, the Senate amendment, and the substitute agreed to in conference are noted below, except for clerical corrections, conforming changes made necessary by agreements reached by the conferees, and minor drafting and clarifying changes.

   TITLE I--FEDERAL-AID HIGHWAYS

   Subtitle A--Authorizations of Programs

   SEC. 1101. AUTHORIZATION OF APPROPRIATIONS

   House Bill

   Sec. 1101.

   Subsection (a) authorizes funds out of the Highway Trust Fund (other than the Mass Transit Account) for the following highway programs: Interstate Maintenance Program, National Highway System, Bridge Program, Highway Safety Improvements Program, Surface Transportation Program, Congestion Mitigation and Air Quality Improvement Program, Appalachian Development Highway System Program, Recreational Trails Program, Federal Lands Highways Program, National Corridor Infrastructure Improvement Program, Coordinated Border Infrastructure Program, Projects of National and Regional Significance Program, Construction of Ferry Boats and Ferry Terminal Facilities, National Scenic Byways Program, Congestion Pricing Pilot Program, Deployment of 511 Traveler Information Program, High Priority Projects Program, Freight Intermodal Connector Program, High Risk Rural Road Safety Improvement Program, Highway Use Tax Evasion Program, Pedestrian and Cyclist Equity, Dedicated Truck Lanes, Highways for LIFE Program, and Commonwealth of Puerto Rico Program.

   Subsection (b) continues the disadvantaged business enterprise (DBE) program with minor changes. The Committee finds there is a continuing compelling need for the DBE program. In enacting TEA 21 in 1998, Congress compiled an extensive record on the effects of discrimination in transportation contracting. Much of this information remains valid today. We agree with those courts that have observed that evidence concerning the exclusion of disadvantaged groups remains relevant over a considerable period of time. The Committee has relied on the information that Congress used in 1998 in finding a continuing compelling need for the DBE program.

   The Committee has also taken notice of data about the period between 1998 and today. The data demonstrates the continuing need for the program, as DBEs are still not able to compete on the same basis as other businesses. First, the regulation, found constitutional in a series of recent court rulings, tells recipients to set overall goals. Under the rules, recipients may set DBE contract goals only for that portion of the overall goal that cannot be achieved by completely race-neutral means. Highway and transit program data for 2000-2002 shows that the overwhelming majority of recipients have to set DBE contract goals to achieve all or part of their overall goals. Unfortunately, race-neutral means alone cannot overcome the persisting effects of discrimination.

   Second, in several States for which DOT has comparative 2002 data, participation by minority- and women-owned businesses in State-funded highway contracts to which no contract goals applied fell well short both of DBE overall goals and DBE participation in federally-assisted contracts. If states are to ensure equal opportunity for DBEs, contract goal programs remain essential. Third, DOT provided 15 detailed studies from states and cities that found disparities between the availability and utilization of minority- and women-owned businesses in government contracting. The courts agree that it is fair to make an inference of discriminatory exclusion from such disparities.

   Senate Bill

   Sec. 1101.

   This section authorizes sums out of the Highway Trust Fund (other than Mass Transit Account) for the Interstate Maintenance Program, National Highway System, Bridge Program, Surface Transportation Program, Congestion Mitigation and Air Quality Improvement Program, Highway Safety Improvement Program, Appalachian Development Highway System Program, Recreational Trails Program, Federal Lands Highway Program, Multi-State Corridor Planning Program, Border, Planning, Operations and Technology Program, National Scenic Byways Program, Infrastructure Performance and Maintenance Program, Construction of Ferry Boats and Ferry Terminal Facilities, Puerto Rico Highway Program, Public-Private Partnerships Pilot Program, Denali Access System, Delta Region Transportation Development Program, and Intermodal Passenger Facilities.

   The authorizing amounts to be appropriated are as follows:

   Interstate Maintenance Program: $5,799,188,140 for fiscal year 2005, $6,032,059,334 for fiscal year 2006, $6,049,378,729 for fiscal year 2007, $6,351,069,528 for fiscal year 2008, and $6,443,591,248 for fiscal year 2009

   National Highway System: $7,054,146,316 for fiscal year 2005, $7,333,629,462 for fiscal year 2006, $7,354,650,712 for fiscal year 2007, $7,720,825,041 for fiscal year 2008, and $7,833,068,496 for fiscal year 2009

   Bridge Program: $4,970,732,691 for fiscal year 2005, $5,157,180,500 for fiscal year 2006, $5,141,987,920 for fiscal year 2007, $5,429,922,039 for fiscal year 2008, and $5,509,052,458 for fiscal year 2009

   Surface Transportation: $7,318,023,129 for fiscal year 2005, $7,597,631,986 for fiscal year 2006, $7,619,446,491 for fiscal year 2007, $7,999,438,719 for fiscal year 2008, and $8,116,064,782 for fiscal year 2009

   Congestion Mitigation and Air Quality Improvement: $1,979,088,016 for fiscal year 2005, $2,049,058,323 for fiscal year 2006, $2,054,941,629 for fiscal year 2007, $2,157,424,382 for fiscal year 2008, and $2,188,954,810 for fiscal year 2009

   Highway Safety Improvement Program: $1,196,657,870 for fiscal year 2005, $1,234,248,870 for fiscal year 2006, $1,246,818,516 for fiscal year 2007, $1,308,999,063 for fiscal year 2008, and $1,328,233,842 for fiscal year 2009

   Appalachian Development Highway System Program: $532,518,499 for fiscal years 2005 through 2009

   Recreational Trails Program: $54,154,424 for fiscal years 2005 through 2009

   Federal Lands Highway Program Indian Reservation Roads: $291,251,572 for fiscal year 2005, $312,578,616 for fiscal year 2006,

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$334,905,660 for fiscal year 2007, $357,232,704 for fiscal year 2008, and $379,559,748 for fiscal year 2009

   Recreation Roads: $44,654,088 for each fiscal years 2005 through 2009

   Park Roads and Parkways: $276,855,346 for fiscal year 2005, and $285,786,164 for fiscal years 2006 through 2009

   Refuge Roads: $26,792,453 for fiscal years 2005 through 2009

   Public Lands Highways: $267,924,258 for fiscal years 2005 through 2009

   Safety: $35,723,270 for fiscal years 2005 through 2009

   Multi-State Corridor Planning Program: $120,566,038 for fiscal year 2005, $140,660,377 for fiscal year 2006, $160,754,717 for fiscal year 2007, $180,849,057 for fiscal year 2008, and $200,943,396 for fiscal year 2009

   Border Planning, Operations, and Technology Program: $120,566,038 for fiscal year 2005, $140,660,377 for fiscal year 2006, $160,754,717 for fiscal year 2007, $180,849,057 for fiscal year 2008, and $200,943,396 for fiscal year 2009

   National Scenic Byways Program: $31,257,862 for fiscal year 2005, $32,150,943 for fiscal year 2006, $33,044,025 for fiscal year 2007, and $34,830,189 for fiscal years 2008 and 2009

   Infrastructure Performance and Maintenance Program: $0

   Construction of Ferry Boats and Terminal Facilities Program: $54,154,424 for fiscal years 2005 through 2009

   Puerto Rico Highway Program: $129,496,855 for fiscal year 2005, $133,069,182 for fiscal year 2006, $137,534,591 for fiscal year 2007, $142,893,082 for fiscal year 2008, and $145,572,327 for fiscal year 2009

   Public-Private Partnerships Pilot Program: $8,930,818 for fiscal years 2005 through 2009

   Denali Access System: $26,792,453 for fiscal years 2005 through 2009

   Delta Region Transportation Development Program: $71,446,541 for fiscal years 2005 through 2009

   Intermodal Passenger Facilities: $8,930,818 for fiscal years 2005 through 2009

   Conference Substitute

   The Conference adopts the Senate provision with modifications. This provision authorizes funds out of the Highway Trust Fund (other than the Mass Transit Account) for the highway programs: Interstate Maintenance Program, National Highway System, Bridge Program, Highway Safety Improvements Program, Surface Transportation Program, Congestion Mitigation and Air Quality Improvement Program, Appalachian Development Highway System Program, Recreational Trails Program, Federal Lands Highways Program, National Corridor Infrastructure Improvement Program, Coordinated Border Infrastructure Program, Projects of National and Regional Significance Program, Construction of Ferry Boats and Ferry Terminal Facilities, National Scenic Byways Program, High Priority Projects Program, Safe Routes to School Program, Highways for LIFE Program, and Puerto Rico Highway Program.

   Subsection (b) continues the disadvantaged business enterprise (DBE) program with minor changes. The Committee finds there is a continuing compelling need for the DBE program. In enacting TEA 21 in 1998, Congress compiled an extensive record on the effects of discrimination in transportation contracting. Much of this information remains valid today. We agree with those courts that have observed that evidence concerning the exclusion of disadvantaged groups remains relevant over a considerable period of time. The Committee has relied on the information that Congress used in 1998 in finding a continuing compelling need for the DBE program. Under DBE, not less than 10 percent of the funds provided under titles I and II of this Act shall be expended with small businesses owned and controlled by socially and economically disadvantaged individuals, except to the extent the Secretary of Transportation determines otherwise. The provision in current law requiring a review of the program by the Comptroller General of the United States has been eliminated. The Comptroller General completed the required review in June 2001.

   SEC. 1102. OBLIGATION CEILING

   House Bill

   Sec. 1102.

   This section provides the obligation limitation for the federal-aid highway and highway safety construction programs. Subsection (b) addresses the exemptions to the obligation limitation. Paragraphs 1-8 in this subsection are identical to TEA 21. Paragraph (9) is added to address three year obligation authority (OA) made available under TEA 21 for research programs and ``no-year'' OA made available for certain programs and projects under TEA 21 or in subsequent appropriations acts. Subsections (c),(d),(e),(f),(g),(h), and (i) address how the obligation authority is distributed, the redistribution of unused obligation authority, and the limitation on obligations for administrative expenses are virtually identical to TEA 21.

   Senate Bill

   Sec. 1102.

   This section sets limits on obligations for spending.

   The general limitation on spending shall be as follows:

   $34,425,380,000 for fiscal year 2005,

   $37,154,999,523 for fiscal year 2006,

   $37,450,167,691 for fiscal year 2007,

   $38,816,364,417 for fiscal year 2008, and

   $40,321,257,845 for fiscal year 2009.

   Conference Substitute

   The Conference adopts provisions from both House and Senate bills with modified funding levels and a funding flexibility provision for fiscal year 2005. This flexibility provision allows states to obligate funds from 1301 and 1302 of this Act and sections 117 and 144(g) of title 23 on core formula programs.

   SEC. 1103. APPORTIONMENTS

   House Bill

   Sec. 1103.

   This section makes changes to the process by which apportionments are made pursuant to Section 104 of Title 23. Subsection (a) of this section amends the way administrative expenses for FHWA and FMCSA are provided. These expenses were formerly funded as a takedown and are now a specific authorized amount.

   Subsection (b) of this section changes the set-aside amount for the Alaska Highway and the set-asides for the U.S. Territories under the National Highway System program apportionment formula.

   Subsection (c) of this section requires the report mandated by Section 104(j) of Title 23 be available on the Internet.

   Subsection (d) of this section makes a conforming amendment to the metropolitan planning set-aside formula to reflect the fact that administrative expenses are no longer funded as a takedown.

   Subsection (e) of this section updates the reference for the Puerto Rico Highway program, replacing the TEA 21 reference with a TEA LU reference.

   Senate Bill

   Sec. 1103.

   This section makes amendments to current apportionments. It authorizes the appropriation of funds for the administrative expenses of the Federal Highway Administration and details the use of these funds.

   This section amends the amounts authorized for administrative expenses, for specified programs to:

   $415,283,019 for fiscal year 2005,

   $428,679,245 for fiscal year 2006,

   $442,075,472 for fiscal year 2007,

   $455,471,698 for fiscal year 2008, and

   $468,867,925 for fiscal year 2009.

   Funds authorized in this section shall be used for the Federal-aid highway program and programs authorized under chapter 2 of title 23, USC. Such sums as the Secretary determines to be appropriate shall be transferred to the Appalachian Regional Commission for administrative activities associated with the Appalachian highway development system.

   The bill increases the set-aside for metropolitan planning to 1.5 percent from the same programs as under TEA-21 and, additionally, the new Highway Safety Program and Equity Bonus Program. Because the 2000 Census establishes 46 new Metropolitan Planning Organizations (MPOs), an increase in funding for metropolitan planning is required. Under the law, each MPO is directed to assume the responsibility for carrying out specific, costly and detailed Federal analysis as required under NEPA, Air Quality Conformity, Long Range Planning, Transportation Improvement Program planning, transportation modeling, operations, and public involvement. This bill further enhances MPO planning for habitat plan development, freight movement, transportation security, deployment of ITS systems including operating and managing traffic centers and incident management programs, and interacting with emergency management officials regarding homeland security issues.

   Conference Substitute

   The Conference agrees to provisions from both House and Senate bills with modifications. This section amends current apportionments. It authorizes the appropriation of funds for the administrative expenses of the Federal Highway Administration and details the use of these funds.

   This provision increases the set-aside amount for the Alaska Highway and the set-asides for the U.S. Territories under the National Highway System program apportionment formula. Changes are also made to the Operation Lifesaver and High-Speed Rail Corridor programs from set-asides to become individually-funded programs.

   The Conference adopts the Senate CMAQ provision with modifications. The addition of a weighting factor for PM2.5 nonattainment areas is not included in the substitute. The Senate language regarding an additional adjustment factor for carbon monoxide is adopted with no modifications.

   For areas in ozone nonattainment, the Conference applies a weighting factor of 1.0 for areas designated under subpart 1 of part D of title I of the Clean Air Act. The Conference maintains the current system of varied weighting factors for areas classified under subpart 2 and intends it to apply to 8-hour nonattainment areas in the same manner it did to 1-hour nonattainment areas. For example, an 8-hour ozone nonattainment area that is classified by EPA as moderate pursuant to subpart 2 would receive a weighting factor of 1.1, while an 8-hour nonattainment area classified by EPA as serious pursuant to subpart 2 would receive a weighting factor of 1.2.

   SEC. 1104. EQUITY BONUS PROGRAM

   House Bill

   Sec. 1104.

   This section retains the Minimum Guarantee program that was created in TEA-21.

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   Senate Bill

   Sec. 1104.

   This section strikes and replaces the Minimum Guarantee Program under Section 105 of Title 23, United States Code with the Equity Bonus Program.

   The Secretary shall ensure that the percentages of apportionments of each State is sufficient to ensure that no State's percentage return from the Highway Trust Fund is less than 92 percent in each of the fiscal years 2005-2009. The rate of return shall include from each State, the total apportionments made for the fiscal year for the Interstate Maintenance Program, the National Highway System Program, the Bridge Program, the Surface Transportation Program, the Congestion Mitigation and Air Quality Improvement Program, the Highway Safety Improvement Program, the Appalachian Development Highway System Program, the Recreational Trails Program, the Infrastructure Performance and Maintenance Program, the Metropolitan Planning Program, and the Equity Bonus Program.

   Special rules protect the calculations for States with a population density of less than 20 persons per square mile, a population less than 1 million, a median household income less than $35,000, or a State with a fatality rate during 2002 on Interstate highways greater than 1 fatality per 100 million vehicle miles traveled on Interstate highways. Further, no State receives apportionments less than 110 percent of the average annual apportionments for specified programs during 1998-2003. There is a cap on the Equity Bonus such that no State may receive apportionments more than a specified percentage of their average for 1998-2003. The scope, or percent funding included in the Equity Bonus program, remains the same as TEA-21 at 92.5 percent.

   Conference Substitute

   The conference adopts the Senate structure with modifications. The Secretary shall ensure that the percentages of apportionments of each State is sufficient to ensure that no State's percentage return from the Highway Trust Fund is less than 90.5% in fiscal year 2005 and 2006, 91.5% in 2007, and 92% in 2008 and 2009. The rate of return shall include from each State, the total apportionments made for the fiscal year for the Interstate Maintenance Program, the National Highway System Program, the Bridge Program, the Surface Transportation Program, the Congestion Mitigation and Air Quality Improvement Program, the Highway Safety Improvement Program, the Appalachian Development Highway System Program, the Recreational Trails Program, the Safe Routes to School Program, the Metropolitan Planning Program, the High Priority Project Program, the Railway-Highway Crossings Program, the Coordinated Border Infrastructure Program, and the Equity Bonus Program.

   Special rules protect the share of apportionments to be provided to any State meeting any one or more of the following criteria: total population density of less than 40 persons per square mile, as reported in the decennial census conducted by the Federal Government in 2000, having at least 1.25 percent of its total acreage in Federal ownership based on GSA's ``Federal Real Property Profile, as of September 30, 2004'' report; or a population less than 1 million as reported in that census; or a median household income less than $35,000 as reported in that census; or a State with a fatality rate during 2002 on Interstate highways greater than 1 fatality per 100 million vehicle miles traveled on Interstate highways; or a State with an indexed, state motor fuels excise tax rate higher than 150 percent of the Federal motor fuels excise tax rate on the date of enactment of this Act.

   Further, no State receives apportionments less than certain percentages above their TEA-21 average annual apportionments for specified programs during 1998-2003. (FY 2005--117 percent; FY 2006--118 percent; FY 2007--119 percent; FY 2008--120 percent; and FY 2009--121 percent)

   SEC. 1105. REVENUE ALIGNED BUDGET AUTHORITY

   House Bill

   Sec. 1108.

   This section continues the revenue aligned budget authority, but in a way that ensures greater stability in program funding level adjustments.