[Pages S1051-S1052]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

  SA 1736. Mr. PORTMAN (for himself and Mr. Coburn) submitted an 
amendment intended to be proposed by him 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:

       At the appropriate place, add the following:

               Subtitle--State Transportation Flexibility

     SEC. __01. SHORT TITLE.

       This subtitle may be cited as the ``State Transportation 
     Flexibility Act''.

     SEC. __02. DIRECT FEDERAL-AID HIGHWAY PROGRAM.

       (a) In General.--Chapter 1 of title 23, United States Code 
     (as amended by section 1115(a)), is amended by adding at the 
     end the following:

     ``Sec.  168. Direct Federal-aid highway program

       ``(a) Election by State Not To Participate.--
     Notwithstanding any other provision of law, a State may elect 
     not to participate in any Federal program relating to 
     highways, including a Federal highway program under the 
     SAFETEA LU (Public Law 109 59; 119 Stat. 1144), this title, 
     or title 49.
       ``(b) Direct Federal-Aid Highway Program.--
       ``(1) In general.--Beginning in fiscal year 2011, the 
     Secretary shall carry out a direct Federal-aid highway 
     program in accordance with the requirements of this section 
     under which the legislature of a State may elect, not fewer 
     than 90 days before the beginning of a fiscal year--
       ``(A) to waive the right of the State to receive amounts 
     apportioned or allocated to the State under the Federal-aid 
     highway program for the fiscal year to which the election 
     relates; and
       ``(B) to receive an amount for that fiscal year that is 
     determined in accordance with subsection (e) for that fiscal 
     year.
       ``(2) Effect.--On making an election under paragraph (1), a 
     State--
       ``(A) assumes all Federal obligations relating to each 
     program that is the subject of the election; and
       ``(B) shall fulfill those obligations using the amounts 
     transferred to the State under subsection (e).
       ``(c) State Responsibility.--
       ``(1) In general.--The Governor of a State making an 
     election under subsection (b) shall--
       ``(A) agree to maintain the Interstate System in accordance 
     with the current Interstate System program;
       ``(B) submit a plan to the Secretary describing--
       ``(i) the purposes, projects, and uses to which amounts 
     received under the program will be put; and
       ``(ii) which programmatic requirements of this title the 
     State elects to continue;
       ``(C) agree to obligate or expend amounts received under 
     the direct Federal-aid highway program exclusively for 
     projects that would be eligible for funding under section 
     133(b) if the State was not participating in the program; and
       ``(D) agree to report annually to the Secretary on the use 
     of amounts received under the direct Federal-aid highway 
     program and to make the report available to the public in an 
     easily accessible format.
       ``(2) No federal limitation on use of funds.--Except as 
     provided in paragraph (1), the expenditure or obligation of 
     funds received by a State under the direct Federal-aid 
     highway program shall not be subject to any Federal 
     regulation under this title (except for this section), title 
     49, or any other Federal law.
       ``(3) Election irrevocable.--An election under subsection 
     (b) shall be irrevocable during the applicable fiscal year.
       ``(d) Effect on Preexisting Commitments.--The making of an 
     election under subsection (b) shall not affect any 
     responsibility or commitment of the State under this title 
     for any fiscal year with respect to--
       ``(1) a project or program funded under this title (other 
     than under this section); or
       ``(2) any project or program funded under this title in any 
     fiscal year for which an election under subsection (b) is not 
     in effect.
       ``(e) Transfers.--
       ``(1) In general.--The amount to be transferred to a State 
     under the direct Federal-aid highway program for a fiscal 
     year shall be the portion of the taxes appropriated to the 
     Highway Trust Fund under section 9503 of the Internal Revenue 
     Code of 1986, other than for the Mass Transit Account, for 
     that fiscal year that is attributable to highway users in 
     that State during that fiscal year, reduced by a pro rata 
     share withheld by the Secretary to fund contract authority 
     for programs of the National Highway Traffic Safety 
     Administration and the Federal Motor Carrier Safety 
     Administration.
       ``(2) Transfers under program.--
       ``(A) In general.--Transfers under the program--
       ``(i) shall be made at the same time as deposits to the 
     Highway Trust Fund are made by the Secretary of the Treasury; 
     and
       ``(ii) shall be made on the basis of estimates by the 
     Secretary, in consultation with the Secretary of the 
     Treasury, based on the most recent data available, and proper 
     adjustments shall be made in amounts subsequently transferred 
     to the extent prior estimates were in excess of, or less 
     than, the amounts required to be transferred.
       ``(B) Limitation.--An adjustment under subparagraph (A)(ii) 
     to any transfer may not exceed 5 percent of the transferred 
     amount to which the adjustment relates. If the adjustment 
     required under subparagraph (A)(ii) exceeds that percentage, 
     the excess shall be taken into account in making subsequent 
     adjustments under subparagraph (A)(ii).
       ``(f) Application With Other Authority.--Any contract 
     authority under this chapter (and any obligation limitation) 
     authorized for a State for a fiscal year for which an 
     election by that State is in effect under subsection (b)--
       ``(1) shall be rescinded or canceled; and
       ``(2) shall not be reallocated or distributed to any other 
     State under the Federal-aid highway program.
       ``(g) Maintenance of Effort.--
       ``(1) In general.--Not later than 30 days after the date on 
     which an amount is distributed to a State or State agency 
     under the State Highway Flexibility Act or an amendment made 
     by that Act, the Governor of the State shall certify to the 
     Secretary that the State will maintain the effort of the 
     State with regard to State funding for the types of projects 
     that are funded by the amounts.
       ``(2) Amounts.--As part of the certification, the Governor 
     shall submit to the Secretary a statement identifying the 
     amount of funds the State plans to expend from State sources 
     during the covered period, for the types of projects that are 
     funded by the amounts.
       ``(h) Treatment of General Revenues.--For purposes of this 
     section, any general revenue funds appropriated to the 
     Highway Trust Fund shall be transferred to a State under the 
     program in the manner described in subsection (e)(1).''.
       (b) Conforming Amendment.--The analysis for title 23, 
     United States Code (as amended by section 1115(b)), is 
     amended by inserting after the item relating to section 149 
     the following:

``168. Direct Federal-aid highway program''.

     SEC. __03. ALTERNATIVE FUNDING OF PUBLIC TRANSPORTATION 
                   PROGRAMS.

       (a) In General.--Chapter 53 of title 49, United States Code 
     (as amended by section 20030), is amended by adding at the 
     end the following:

     ``Sec.  5341. Alternative funding of public transportation 
       programs

       ``(a) Definitions.--In this section--
       ``(1) Alternative funding program.--The term `alternative 
     funding program' means the program established under 
     subsection (c).
       ``(2) Covered programs.--The term `covered programs' means 
     the programs authorized under--
       ``(A) sections 5305, 5307, 5308, 5309, 5310, 5311, 5316, 
     5317, 5320, 5335, 5339, and 5340; and
       ``(B) section 3038 of the Federal Transit Act of 1998 (49 
     U.S.C. 5310 note).
       ``(b) Election by State Not To Participate.--
       ``(1) In general.--Notwithstanding any other provision of 
     law, a State may elect not to participate in all Federal 
     programs relating to public transportation funded under the 
     Mass Transit Account of the Highway Trust Fund, including the 
     Federal public transportation programs under the SAFETEA LU 
     (Public Law 109 59; 119 Stat. 1144), title 23, or this title.
       ``(2) Effect.--On making an election under paragraph (1), a 
     State--
       ``(A) assumes all Federal obligations relating to each 
     program that is the subject of the election; and

[[Page S1052]]

       ``(B) shall fulfill those obligations using the amounts 
     transferred to the State under subsection (e).
       ``(c) Public Transportation Program.--
       ``(1) Program established.--Beginning in fiscal year 2011, 
     the Secretary shall carry out an alternative funding program 
     under which the legislature of a State may elect, not fewer 
     than 90 days before the beginning of a fiscal year--
       ``(A) to waive the right of the State to receive amounts 
     apportioned or allocated to the State under the covered 
     programs for the fiscal year to which the election relates; 
     and
       ``(B) to receive an amount for that fiscal year that is 
     determined in accordance with subsection (e).
       ``(2) Program requirements.--
       ``(A) In general.--The Governor of a State that 
     participates in the alternative funding program shall--
       ``(i) submit a plan to the Secretary describing--

       ``(I) the purposes, projects, and uses to which amounts 
     received under the alternative funding program will be put; 
     and
       ``(II) which programmatic requirements of this title the 
     State elects to continue;

       ``(ii) agree to obligate or expend amounts received under 
     the alternative funding program exclusively for projects that 
     would be eligible for funding under the covered programs if 
     the State was not participating in the alternative funding 
     program; and
       ``(iii) submit to the Secretary an annual report on the use 
     of amounts received under the alternative funding program, 
     and to make the report available to the public in an easily 
     accessible format.
       ``(B) No federal limitation on use of funds.--Except as 
     provided in subparagraph (A), the expenditure or obligation 
     of funds received by a State under the alternative funding 
     program shall not be subject to the provisions of this title 
     (except for this section), title 23, or any other Federal 
     law.
       ``(3) Election irrevocable.--An election under paragraph 
     (1) shall be irrevocable during the applicable fiscal year.
       ``(d) Effect on Preexisting Commitments.--Participation in 
     the alternative funding program shall not affect any 
     responsibility or commitment of the State under this title 
     for any fiscal year with respect to--
       ``(1) a project or program funded under this title (other 
     than under this section); or
       ``(2) any project or program funded under this title in any 
     fiscal year for which the State elects not to participate in 
     the alternative funding program.
       ``(e) Transfers.--
       ``(1) In general.--The amount to be transferred to a State 
     under the alternative funding program for a fiscal year shall 
     be the portion of the taxes transferred to the Mass Transit 
     Account of the Highway Trust Fund under section 9503(e) of 
     the Internal Revenue Code of 1986, for that fiscal year, that 
     is attributable to highway users in that State during that 
     fiscal year.
       ``(2) Transfers.--
       ``(A) In general.--Transfers under the program--
       ``(i) shall be made at the same time as transfers to the 
     Mass Transit Account of the Highway Trust Fund are made by 
     the Secretary of the Treasury; and
       ``(ii) shall be made on the basis of estimates by the 
     Secretary, in consultation with the Secretary of the 
     Treasury, based on the most recent data available, and proper 
     adjustments shall be made in amounts subsequently 
     transferred, to the extent prior estimates were in excess of, 
     or less than, the amounts required to be transferred.
       ``(B) Limitation.--An adjustment under subparagraph (A)(ii) 
     to any transfer may not exceed 5 percent of the transferred 
     amount to which the adjustment relates. If the adjustment 
     required under subparagraph (A)(ii) exceeds that percentage, 
     the excess shall be taken into account in making subsequent 
     adjustments under subparagraph (A)(ii).
       ``(f) Contract Authority.--There shall be rescinded or 
     canceled any contract authority under this chapter (and any 
     obligation limitation) authorized for a State for a fiscal 
     year for which the State elects to participate in the 
     alternative funding program.
       ``(g) Maintenance of Effort.--
       ``(1) In general.--Not later than 30 days after the date on 
     which an amount is distributed to a State or State agency 
     under the State Highway Flexibility Act or an amendment made 
     by that Act, the Governor of the State shall certify to the 
     Secretary that the State will maintain the effort of the 
     State with regard to State funding for the types of projects 
     that are funded by the amounts.
       ``(2) Amounts.--The certification under paragraph (1) shall 
     include a statement identifying the amount of funds the State 
     plans to expend from State sources for projects funded under 
     the alternative funding program, during the fiscal year for 
     which the State elects to participate in the alternative 
     funding program.
       ``(h) Treatment of General Revenues.--For purposes of this 
     section, any general revenue funds appropriated to the 
     Highway Trust Fund shall be transferred to a State under the 
     program in the manner described in subsection (e).''.
       (b) Conforming Amendment.--The analysis for title 49, 
     United States Code (as amended by section 20031(k)), is 
     amended by adding after the item relating to section 5340 the 
     following:

``5341. Alternative funding of public transportation programs''.

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