§ 181. — Definitions.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 23USC181]
TITLE 23--HIGHWAYS
CHAPTER 1--FEDERAL-AID HIGHWAYS
SUBCHAPTER II--INFRASTRUCTURE FINANCE
Sec. 181. Definitions
In this subchapter, the following definitions apply:
(1) Eligible project costs.--The term ``eligible project costs''
means amounts substantially all of which are paid by, or for the
account of, an obligor in connection with a project, including the
cost of--
(A) development phase activities, including planning,
feasibility analysis, revenue forecasting, environmental review,
permitting, preliminary engineering and design work, and other
preconstruction activities;
(B) construction, reconstruction, rehabilitation,
replacement, and acquisition of real property (including land
related to the project and improvements to land), environmental
mitigation, construction contingencies, and acquisition of
equipment; and
(C) capitalized interest necessary to meet market
requirements, reasonably required reserve funds, capital
issuance expenses, and other carrying costs during construction.
(2) Federal credit instrument.--The term ``Federal credit
instrument'' means a secured loan, loan guarantee, or line of credit
authorized to be made available under this subchapter with respect
to a project.
(3) Investment-grade rating.--The term ``investment-grade
rating'' means a rating category of BBB minus, Baa3, or higher
assigned by a rating agency to project obligations offered into the
capital markets.
(4) Lender.--The term ``lender'' means any non-Federal qualified
institutional buyer (as defined in section 230.144A(a) of title 17,
Code of Federal Regulations (or any successor regulation), known as
Rule 144A(a) of the Securities and Exchange Commission and issued
under the Securities Act of 1933 (15 U.S.C. 77a et seq.)),
including--
(A) a qualified retirement plan (as defined in section
4974(c) of the Internal Revenue Code of 1986) that is a
qualified institutional buyer; and
(B) a governmental plan (as defined in section 414(d) of the
Internal Revenue Code of 1986) that is a qualified institutional
buyer.
(5) Line of credit.--The term ``line of credit'' means an
agreement entered into by the Secretary with an obligor under
section 184 to provide a direct loan at a future date upon the
occurrence of certain events.
(6) Loan guarantee.--The term ``loan guarantee'' means any
guarantee or other pledge by the Secretary to pay all or part of the
principal of and interest on a loan or other debt obligation issued
by an obligor and funded by a lender.
(7) Local servicer.--The term ``local servicer'' means--
(A) a State infrastructure bank established under this
title; or
(B) a State or local government or any agency of a State or
local government that is responsible for servicing a Federal
credit instrument on behalf of the Secretary.
(8) Obligor.--The term ``obligor'' means a party primarily
liable for payment of the principal of or interest on a Federal
credit instrument, which party may be a corporation, partnership,
joint venture, trust, or governmental entity, agency, or
instrumentality.
(9) Project.--The term ``project'' means--
(A) any surface transportation project eligible for Federal
assistance under this title or chapter 53 of title 49;
(B) a project for an international bridge or tunnel for
which an international entity authorized under Federal or State
law is responsible.\1\
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\1\ So in original. The period probably should be a semicolon.
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(C) a project for intercity passenger bus or rail facilities
and vehicles, including facilities and vehicles owned by the
National Railroad Passenger Corporation and components of
magnetic levitation transportation systems; and
(D) a project for publicly owned intermodal surface freight
transfer facilities, other than seaports and airports, if the
facilities are located on or adjacent to National Highway System
routes or connections to the National Highway System.
(10) Project obligation.--The term ``project obligation'' means
any note, bond, debenture, or other debt obligation issued by an
obligor in connection with the financing of a project, other than a
Federal credit instrument.
(11) Rating agency.--The term ``rating agency'' means a bond
rating agency identified by the Securities and Exchange Commission
as a Nationally Recognized Statistical Rating Organization.
(12) Secured loan.--The term ``secured loan'' means a direct
loan or other debt obligation issued by an obligor and funded by the
Secretary in connection with the financing of a project under
section 183.
(13) State.--The term ``State'' has the meaning given the term
in section 101.
(14) Subsidy amount.--The term ``subsidy amount'' means the
amount of budget authority sufficient to cover the estimated long-
term cost to the Federal Government of a Federal credit instrument,
calculated on a net present value basis, excluding administrative
costs and any incidental effects on governmental receipts or outlays
in accordance with the provisions of the Federal Credit Reform Act
of 1990 (2 U.S.C. 661 et seq.).
(15) Substantial completion.--The term ``substantial
completion'' means the opening of a project to vehicular or
passenger traffic.
(Added Pub. L. 105-178, title I, Sec. 1503(a), June 9, 1998, 112 Stat.
241.)
References in Text
The Securities Act of 1933, referred to in par. (4), is act May 27,
1933, ch. 38, title I, 48 Stat. 74, as amended, which is classified
generally to subchapter I (Sec. 77a et seq.) of chapter 2A of Title 15,
Commerce and Trade. For complete classification of this Act to the Code,
see section 77a of Title 15 and Tables.
The Internal Revenue Code of 1986, referred to in par. (4), is set
out in Title 26, Internal Revenue Code.
The Federal Credit Reform Act of 1990, referred to in par. (14), is
title V of Pub. L. 93-344, as added by Pub. L. 101-508, title XIII,
Sec. 13201(a), Nov. 5, 1990, 104 Stat. 1388-609, which is classified
generally to subchapter III (Sec. 661 et seq.) of chapter 17A of Title
2, The Congress. For complete classification of this Act to the Code,
see Short Title note set out under section 621 of Title 2 and Tables.
Congressional Findings
Pub. L. 105-178, title I, Sec. 1502, June 9, 1998, 112 Stat. 241,
provided that: ``Congress finds that--
``(1) a well-developed system of transportation infrastructure
is critical to the economic well-being, health, and welfare of the
people of the United States;
``(2) traditional public funding techniques such as grant
programs are unable to keep pace with the infrastructure investment
needs of the United States because of budgetary constraints at the
Federal, State, and local levels of government;
``(3) major transportation infrastructure facilities that
address critical national needs, such as intermodal facilities,
border crossings, and multistate trade corridors, are of a scale
that exceeds the capacity of Federal and State assistance programs
in effect on the date of enactment of this Act [June 9, 1998];
``(4) new investment capital can be attracted to infrastructure
projects that are capable of generating their own revenue streams
through user charges or other dedicated funding sources; and
``(5) a Federal credit program for projects of national
significance can complement existing funding resources by filling
market gaps, thereby leveraging substantial private co-investment.''
State Infrastructure Bank Pilot Programs
Pub. L. 105-178, title I, Sec. 1511, June 9, 1998, 112 Stat. 251, as
amended by Pub. L. 107-117, div. B, Sec. 1108, Jan. 10, 2002, 115 Stat.
2332, provided that:
``(a) Definitions.--In this section:
``(1) Other assistance.--The term `other assistance' includes
any use of funds in an infrastructure bank--
``(A) to provide credit enhancements;
``(B) to serve as a capital reserve for bond or debt
instrument financing;
``(C) to subsidize interest rates;
``(D) to ensure the issuance of letters of credit and credit
instruments;
``(E) to finance purchase and lease agreements with respect
to transit projects;
``(F) to provide bond or debt financing instrument security;
and
``(G) to provide other forms of debt financing and methods
of leveraging funds that are approved by the Secretary and that
relate to the project with respect to which the assistance is
being provided.
``(2) State.--The term `State' has the meaning given the term
under section 401 of title 23, United States Code.
``(b) Cooperative Agreements.--
``(1) In general.--
``(A) Purpose of agreements.--Subject to this section, the
Secretary may enter into cooperative agreements with the States
of California, Florida, Missouri, and [sic] Rhode Island, and
Texas for the establishment of State infrastructure banks and
multistate infrastructure banks for making loans and providing
other assistance to public and private entities carrying out or
proposing to carry out projects eligible for assistance under
this section, provided that Texas may not compete for funds
previously allocated or appropriated to any other State.
``(B) Contents of agreements.--Each cooperative agreement
shall specify procedures and guidelines for establishing,
operating, and providing assistance from the infrastructure
bank.
``(2) Interstate compacts.--If 2 or more States enter into a
cooperative agreement under paragraph (1) with the Secretary for the
establishment of a multistate infrastructure bank, Congress grants
consent to those States to enter into an interstate compact
establishing the bank in accordance with this section.
``(c) Funding.--
``(1) Contribution.--Notwithstanding any other provision of law,
the Secretary may allow, subject to subsection (h)(1), a State that
enters into a cooperative agreement under this section to contribute
to the infrastructure bank established by the State not to exceed--
``(A)(i) the total amount of funds apportioned to the State
under each of paragraphs (1), (3), and (4) of section 104(b) and
section 144 of title 23, United States Code, excluding funds set
aside under paragraphs (1) and (2) of section 133(d) of such
title; and
``(ii) the total amount of funds allocated to the State
under section 105 of such title;
``(B) the total amount of funds made available to the State
or other Federal transit grant recipient for capital projects
(as defined in section 5302 of title 49, United States Code)
under sections 5307, 5309, and 5311 of such title; and
``(C) the total amount of funds made available to the State
under subtitle V of title 49, United States Code.
``(2) Capitalization grant.--For the purposes of this section,
Federal funds contributed to the infrastructure bank under this
subsection shall constitute a capitalization grant for the
infrastructure bank.
``(3) Special rule for urbanized areas of over 200,000.--Funds
that are apportioned or allocated to a State under section 104(b)(3)
of title 23, United States Code, and attributed to urbanized areas
of a State with a population of over 200,000 individuals under
section 133(d)(2) of such title may be used to provide assistance
from an infrastructure bank under this section with respect to a
project only if the metropolitan planning organization designated
for the area concurs, in writing, with the provision of the
assistance.
``(d) Forms of Assistance From Infrastructure Banks.--
``(1) In general.--An infrastructure bank established under this
section may make loans or provide other assistance to a public or
private entity in an amount equal to all or part of the cost of
carrying out a project eligible for assistance under this section.
``(2) Subordination of loans.--The amount of any loan or other
assistance provided for the project may be subordinated to any other
debt financing for the project.
``(3) Initial assistance.--Initial assistance provided with
respect to a project from Federal funds contributed to an
infrastructure bank under this section shall not be made in the form
of a grant.
``(e) Qualifying Projects.--
``(1) In general.--Subject to paragraph (2), funds in an
infrastructure bank established under this section may be used only
to provide assistance with respect to projects eligible for
assistance under title 23, United States Code, for capital projects
(as defined in section 5302 of title 49, United States Code), or for
any other project related to surface transportation that the
Secretary determines to be appropriate.
``(2) Interstate funds.--Funds contributed to an infrastructure
bank from funds apportioned to a State under section 104(b)(4) of
title 23, United States Code, may be used only to provide assistance
with respect to projects eligible for assistance under such
paragraph.
``(3) Rail program funds.--Funds contributed to an
infrastructure bank from funds made available to a State under
subtitle V of title 49, United States Code, shall be used in a
manner consistent with any project description specified under the
law making the funds available to the State.
``(f) Infrastructure Bank Requirements.--
``(1) In general.--Subject to paragraph (2), in order to
establish an infrastructure bank under this section, each State
establishing such a bank shall--
``(A) contribute, at a minimum, to the bank from non-Federal
sources an amount equal to 25 percent of the amount of each
capitalization grant made to the State and contributed to the
bank under subsection (c), except that if the State has a higher
Federal share payable under section 120(b) of title 23, United
States Code, the State shall be required to contribute only an
amount commensurate with the higher Federal share;
``(B) ensure that the bank maintains on a continuing basis
an investment grade rating on its debt issuances and its ability
to pay claims under credit enhancement programs of the bank;
``(C) ensure that investment income generated by funds
contributed to the bank will be--
``(i) credited to the bank;
``(ii) available for use in providing loans and other
assistance to projects eligible for assistance from the
bank; and
``(iii) invested in United States Treasury securities,
bank deposits, or such other financing instruments as the
Secretary may approve to earn interest to enhance the
leveraging of projects assisted by the bank;
``(D) ensure that any loan from the bank will bear interest
at or below market rates, as determined by the State, to make
the project that is the subject of the loan feasible;
``(E) ensure that repayment of the loan from the bank will
commence not later than 5 years after the project has been
completed or, in the case of a highway project, the facility has
opened to traffic, whichever is later;
``(F) ensure that the term for repaying any loan will not
exceed the lesser of--
``(i) 35 years after the date of the first payment on
the loan under subparagraph (E); or
``(ii) the useful life of the investment; and
``(G) require the bank to make a biennial report to the
Secretary and to make such other reports as the Secretary may
require in guidelines.
``(2) Waivers by the secretary.--The Secretary may waive a
requirement of any of subparagraphs (C) through (G) of paragraph (1)
with respect to an infrastructure bank if the Secretary determines
that the waiver is consistent with the objectives of this section.
``(g) Limitation on Repayments.--Notwithstanding any other provision
of law, the repayment of a loan or other assistance provided from an
infrastructure bank under this section may not be credited toward the
non-Federal share of the cost of any project.
``(h) Secretarial Requirements.--In administering this section, the
Secretary shall--
``(1) ensure that Federal disbursements shall be at an annual
rate of not more than 20 percent of the amount designated by the
State for State infrastructure bank capitalization under subsection
(c)(1), except that the Secretary may disburse funds to a State in
an amount needed to finance a specific project; and
``(2) revise cooperative agreements entered into with States
under section 350 of the National Highway System Designation Act of
1995 (Public Law 104-59 [set out below]) to comply with this
section.
``(i) Applicability of Federal Law.--
``(1) In general.--The requirements of titles 23 and 49, United
States Code, that would otherwise apply to funds made available
under such title and projects assisted with those funds shall apply
to--
``(A) funds made available under such title and contributed
to an infrastructure bank established under this section,
including the non-Federal contribution required under subsection
(f); and
``(B) projects assisted by the bank through the use of the
funds;
except to the extent that the Secretary determines that any
requirement of such title (other than sections 113 and 114 of title
23 and section 5333 of title 49), is not consistent with the
objectives of this section.
``(2) Repayments.--The requirements of titles 23 and 49, United
States Code, shall apply to repayments from non-Federal sources to
an infrastructure bank from projects assisted by the bank. Such a
repayment shall be considered to be Federal funds.
``(j) United States Not Obligated.--
``(1) In general.--The contribution of Federal funds to an
infrastructure bank established under this section shall not be
construed as a commitment, guarantee, or obligation on the part of
the United States to any third party. No third party shall have any
right against the United States for payment solely by virtue of the
contribution.
``(2) Statement.--Any security or debt financing instrument
issued by the infrastructure bank shall expressly state that the
security or instrument does not constitute a commitment, guarantee,
or obligation of the United States.
``(k) Management of Federal Funds.--Sections 3335 and 6503 of title
31, United States Code, shall not apply to funds contributed under this
section.
``(l) Program Administration.--
``(1) In general.--A State may expend not to exceed 2 percent of
the Federal funds contributed to an infrastructure bank established
by the State under this section to pay the reasonable costs of
administering the bank.
``(2) Non-federal funds.--The limitation described in paragraph
(1) shall not apply to non-Federal funds.''
Pub. L. 104-59, title III, Sec. 350, Nov. 28, 1995, 109 Stat. 618,
provided that:
``(a) In General.--
``(1) Cooperative agreements.--Subject to the provisions of this
section, the Secretary [of Transportation] may enter into
cooperative agreements with not to exceed 10 States for the
establishment of State infrastructure banks and multistate
infrastructure banks for making loans and providing other assistance
to public and private entities carrying out or proposing to carry
out projects eligible for assistance under this section.
``(2) Interstate compacts.--Congress grants consent to 2 or more
of the States, entering into a cooperative agreement under paragraph
(1) with the Secretary for the establishment of a multistate
infrastructure bank, to enter into an interstate compact
establishing such bank in accordance with this section.
``(b) Funding.--
``(1) Separate accounts.--An infrastructure bank established
under this section shall maintain a separate highway account for
Federal funds contributed to the bank under paragraph (2) and a
separate transit account for Federal funds contributed to the bank
under paragraph (3). No Federal funds contributed or credited to an
account of an infrastructure bank established under this section may
be commingled with Federal funds contributed or credited to any
other account of such bank.
``(2) Highway account.--Notwithstanding any other provision of
law, the Secretary may allow, subject to subsection (g)(1), a State
entering into a cooperative agreement under this section to
contribute not to exceed--
``(A) 10 percent of the funds apportioned to the State for
each of fiscal years 1996 and 1997 under each of sections
104(b)(1), 104(b)(3), 104(b)(5)(B), 144, and 160 of title 23,
United States Code, and section 1015 of the Intermodal Surface
Transportation Efficiency Act of 1991 [Pub. L. 102-240, 23
U.S.C. 104 note]; and
``(B) 10 percent of the funds allocated to the State for
each of such fiscal years under each of section 157 of such
title and section 1013(c) of such Act [formerly 23 U.S.C. 157
note];
into the highway account of the infrastructure bank established by
the State. Federal funds contributed to such account under this
paragraph shall constitute for purposes of this section a
capitalization grant for the highway account of the infrastructure
bank.
``(3) Transit account.--Notwithstanding any other provision of
law, the Secretary may allow, subject to subsection (g)(1), a State
entering into a cooperative agreement under this section, and any
other Federal transit grant recipient, to contribute not to exceed
10 percent of the funds made available to the State or other Federal
transit grant recipient in each of fiscal years 1996 and 1997 for
capital projects under sections 5307, 5309, and 5311 of title 49,
United States Code, into the transit account of the infrastructure
bank established by the State. Federal funds contributed to such
account under this paragraph shall constitute for purposes of this
section a capitalization grant for the transit account of the
infrastructure bank.
``(4) Special rule for urbanized areas of over 200,000.--Funds
that are apportioned or allocated to a State under section 104(b)(3)
or 160 of title 23, United States Code, or under section 1013(c) or
1015 of the Intermodal Surface Transportation Efficiency Act of 1991
[Pub. L. 102-240, 23 U.S.C. 104 note, formerly 157 note] and
attributed to urbanized areas of a State with an urbanized
population of over 200,000 under section 133(d)(3) of such title may
be used to provide assistance with respect to a project only if the
metropolitan planning organization designated for such area concurs,
in writing, with the provision of such assistance.
``(c) Forms of Assistance From Infrastructure Banks.--An
infrastructure bank established under this section may make loans or
provide other assistance to a public or private entity in an amount
equal to all or part of the cost of carrying out a project eligible for
assistance under this section. The amount of any loan or other
assistance provided for such project may be subordinated to any other
debt financing for the project. Initial assistance provided with respect
to a project from Federal funds contributed to an infrastructure bank
under this section may not be made in the form of a grant.
``(d) Qualifying Projects.--Federal funds in the highway account of
an infrastructure bank established under this section may be used only
to provide assistance with respect to construction of Federal-aid
highways. Federal funds in the transit account of such bank may be used
only to provide assistance with respect to capital projects.
``(e) Infrastructure Bank Requirements.--In order to establish an
infrastructure bank under this section, each State establishing the bank
shall--
``(1) contribute, at a minimum, in each account of the bank from
non-Federal sources an amount equal to 25 percent of the amount of
each capitalization grant made to the State and contributed to the
bank; except that if the contribution is into the highway account of
the bank and the State has a lower non-Federal share under section
120(b) of title 23, United States Code, such percentage shall be
adjusted by the Secretary to correspond with such lower non-Federal
share;
``(2) ensure that the bank maintains on a continuing basis an
investment grade rating on its debt issuances or has a sufficient
level of bond or debt financing instrument insurance to maintain the
viability of the bank;
``(3) ensure that investment income generated by funds
contributed to an account of the bank will be--
``(A) credited to the account;
``(B) available for use in providing loans and other
assistance to projects eligible for assistance from the account;
and
``(C) invested in United States Treasury securities, bank
deposits, or such other financing instruments as the Secretary
may approve to earn interest to enhance the leveraging of
projects assisted by the bank;
``(4) provide that the repayment of a loan or other assistance
from an account of the bank under this section shall be consistent
with the repayment provisions of section 129(a)(7) of title 23,
United States Code, except to the extent the Secretary determines
that such provisions are not consistent with this section;
``(5) ensure that any loan from the bank will bear interest at
or below market interest rates, as determined by the State, to make
the project that is the subject of the loan feasible;
``(6) ensure that repayment of any loan from the bank will
commence not later than 5 years after the project has been completed
or, in the case of a highway project, the facility has opened to
traffic, whichever is later;
``(7) ensure that the term for repaying any loan will not exceed
30 years after the date of the first payment on the loan under
paragraph (6); and
``(8) require the bank to make an annual report to the Secretary
on its status no later than September 30, 1996, and September 30,
1997, and to make such other reports as the Secretary may require by
guidelines.
``(f) Limitation on Repayments.--Notwithstanding any other provision
of law, the repayment of a loan or other assistance provided from an
infrastructure bank under this section may not be credited towards the
non-Federal share of the cost of any project.
``(g) Secretarial Requirements.--In administering this section, the
Secretary shall--
``(1) ensure that Federal disbursements shall be at a rate
consistent with historic rates for the Federal-aid highway program
and the Federal transit program, respectively;
``(2) issue guidelines to ensure that all requirements of title
23, United States Code, or title 49, United States Code, that would
otherwise apply to funds made available under such title and
projects assisted with such funds apply to--
``(A) funds made available under such title and contributed
to an infrastructure bank established under this section; and
``(B) projects assisted by the bank through the use of such
funds;
except to the extent that the Secretary determines that any
requirement of such title is not consistent with the objectives of
this section; and
``(3) specify procedures and guidelines for establishing,
operating, and providing assistance from the bank.
``(h) United States Not Obligated.--The contribution of Federal
funds into an infrastructure bank established under this section shall
not be construed as a commitment, guarantee, or obligation on the part
of the United States to any third party, nor shall any third party have
any right against the United States for payment solely by virtue of the
contribution. Any security or debt financing instrument issued by the
infrastructure bank shall expressly state that the security or
instrument does not constitute a commitment, guarantee, or obligation of
the United States.
``(i) Management of Federal Funds.--Sections 3335 and 6503 of title
31, United States Code, shall not apply to funds contributed under this
section.
``(j) Program Administration.--For each of fiscal years 1996 and
1997, a State may expend not to exceed 2 percent of the Federal funds
contributed to an infrastructure bank established by the State under
this section to pay the reasonable costs of administering the bank.
``(k) Secretarial Review.--The Secretary shall review the financial
condition of each infrastructure bank established under this section and
transmit to Congress a report on the results of such review not later
than March 1, 1997. In addition, the report shall contain--
``(1) an evaluation of the pilot program conducted under this
section and the ability of such program to increase public
investment and attract non-Federal capital; and
``(2) recommendations of the Secretary as to whether the program
should be expanded or made a part of the Federal-aid highway and
transit programs.
``(l) Definitions.--In this section, the following definitions
apply:
``(1) Capital project.--The term `capital project' has the
meaning such term has under section 5302 of title 49, United States
Code.
``(2) Construction; federal-aid highway.--The terms
`construction' and `Federal-aid highway' have the meanings such
terms have under section 101 of title 23, United States Code.
``(3) Other assistance.--The term `other assistance' includes
any use of funds in an infrastructure bank--
``(A) to provide credit enhancements;
``(B) to serve as a capital reserve for bond or debt
instrument financing;
``(C) to subsidize interest rates;
``(D) to ensure the issuance of letters of credit and credit
instruments;
``(E) to finance purchase and lease agreements with respect
to transit projects;
``(F) to provide bond or debt financing instrument security;
and
``(G) to provide other forms of debt financing and methods
of leveraging funds that are approved by the Secretary and that
relate to the project with respect to which such assistance is
being provided.
``(4) State.--The term `State' has the meaning such term has
under section 101 of title 23, United States Code.''
