Building Much Needed Rail Grade Separations Act of 2021
This bill establishes a grade separation investment program to award competitive grants to certain entities for projects that
Among other requirements, the bill (1) requires grant awards for large projects (projects with total costs of greater than $100 million) to be at least $50 million, and for any other projects not less than $2.5 million; and (2) directs the Department of Transportation to consider a number of factors in awarding grants, including accident history at the rail-highway crossing over the last 10 years, the annual average daily motor vehicle, cyclist, and pedestrian traffic at the crossing, the likelihood of a collision based on the geometry of the crossing, and the number of critical facilities near the crossing.
To amend title 23, United States Code, to establish a dedicated, 
   competitive highway-rail grade separation program, and for other 
                               purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Building Much Needed Rail Grade 
Separations Act of 2021''.

SEC. 2. GRADE SEPARATION GRANT PROGRAM.

    (a) In General.--Chapter 1 of title 23, United States Code, is 
amended by inserting after section 130 the following:
``Sec. 130A. Railway-highway crossing separation program
    ``(a) Definitions.--In this section:
            ``(1) Crossing.--The term `crossing' means a railway-
        highway grade crossing.
            ``(2) Grade separation.--The term `grade separation' means 
        the elimination of a rail-highway grade crossing through the 
        building of an additional structure such as an overpass, 
        underpass, or trench, or a rail line relocation and improvement 
        project that results in the closure of a highway-grade 
        crossing.
            ``(3) Large project.--The term `large project' means a 
        project funded under this section that has total eligible 
        project costs of greater than $100,000,000.
            ``(4) Program.--The term `Program' means the grade 
        separation investment program established under subsection 
        (b)(1).
    ``(b) Establishment of Grade Separation Program.--
            ``(1) In general.--The Secretary shall establish a grade 
        separation investment program to provide grants on a 
        competitive basis to carry out activities described in 
        subsection (i) relating to grade separations.
            ``(2) Goals.--The goals of the Program shall be--
                    ``(A) to separate railway-highway grade crossings;
                    ``(B) to improve safety by reducing the number of 
                deaths and injuries at rail-highway crossings;
                    ``(C) to increase the efficiency, and reliability 
                of the movement of people and freight over rail-highway 
                crossings;
                    ``(D) to increase the capacity of the freight and 
                passenger rail system;
                    ``(E) to reduce the amount of noise from trains; 
                and
                    ``(F) to improve air quality and reduce greenhouse 
                gas emissions from less idling at rail-highway 
                crossings, especially in frontline communities.
    ``(c) Funding.--
            ``(1) Grant amounts.--Except as otherwise provided, a grant 
        under the Program shall be--
                    ``(A) in the case of a large project, in an amount 
                that is--
                            ``(i) adequate to fully fund the project 
                        (in combination with other financial resources 
                        identified in the application); and
                            ``(ii) not less than $50,000,000; and
                    ``(B) in the case of an eligible project that is 
                not a large project, in an amount that is--
                            ``(i) adequate to fully fund the project 
                        (in combination with other financial resources 
                        identified in the application); and
                            ``(ii) not less than $2,500,000.
            ``(2) Maximum amount.--For an eligible project receiving 
        assistance under the Program, the amount of assistance provided 
        by the Secretary under this section, as a share of eligible 
        project costs, shall be--
                    ``(A) in the case of a large project, not more than 
                50 percent; and
                    ``(B) in the case of a project that is not a large 
                project, not more than 80 percent.
            ``(3) Railroad liability.--Any railroad or railroads 
        involved in a project paid for in whole or in part from amounts 
        made available under this section shall be liable to the United 
        States for the net benefit to the railroad determined under the 
        classification of such project made pursuant to paragraph (4).
            ``(4) Railroad share.--Any railroad or railroads involved 
        in a grade separation project carried out under this Act that 
        benefits from such project shall be liable to the United States 
        for 10 percent of the costs of construction, which shall be 
        deemed to represent the net benefit to the railroad or 
        railroads for the purpose of determining the railroad's share 
        of the cost of construction.
            ``(5) Cash share.--Not more than half of the amount 
        required under paragraph (4) may be attributable to non-cash 
        contributions of materials and labor furnished by the railroad 
        in connection with the construction of such project.
            ``(6) Large projects.--At least 70 percent of the funds 
        awarded in a fiscal year under this Program shall used for 
        large projects.
            ``(7) Future pipeline.--At least 5 percent of the total 
        amount awarded in a fiscal year under this Program shall be for 
        projects seeking funding for planning, preliminary engineering, 
        or final environmental review. The Secretary shall ensure that 
        the funding awarded is sufficient for such project to be 
        eligible for grant amounts for final design or construction in 
        a future application cycle.
    ``(d) Eligible Entity.--The Secretary may make a grant under the 
Program to any of the following:
            ``(1) A State.
            ``(2) A group of States.
            ``(3) An interstate compact.
            ``(4) A public agency or publicly chartered authority 
        established by one or more States.
            ``(5) A political subdivision of a State.
            ``(6) A metropolitan planning organization.
            ``(7) Amtrak or another rail carrier that provides 
        intercity rail passenger transportation (as defined in section 
        24102 of title 49).
            ``(8) A commuter rail authority.
            ``(9) A Tribal government or a consortium of Tribal 
        governments.
            ``(10) A multistate or multijurisdictional group of 
        entities described in paragraphs (1) through (9).
    ``(e) Administration of Funds.--The Secretary may transfer any 
amounts awarded under this section, as appropriate, after selection, to 
the Federal Railroad Administration for--
            ``(1) administration of funds in accordance with title 49; 
        or
            ``(2) for administration of funds in accordance with 
        chapter 53 of title 49.
    ``(f) Considerations.--
            ``(1) Primary considerations.--In awarding grants under the 
        Program, the Secretary shall consider the following primary 
        factors:
                    ``(A) Accident history at the crossing over the 
                last 10 years, including the number of fatalities and 
                injuries.
                    ``(B) Volume of trains, both freight and passenger, 
                passing through the crossing.
                    ``(C) Average speed of trains, both freight and 
                passenger, that pass through the crossing.
                    ``(D) Annual average daily motor vehicle, cyclist, 
                and pedestrian traffic at the crossing.
                    ``(E) Likelihood of a collision based on the 
                geometry of the crossing.
                    ``(F) Design speed and speed limit of the roadway 
                that meets the crossing.
                    ``(G) The number of other at-grade crossings in the 
                vicinity of the project location.
                    ``(H) The number of other grade separated crossings 
                in the vicinity of the project location.
                    ``(I) The amount of critical facilities near the 
                crossing, including emergency response services, 
                hospitals, schools, chemical and power plants 
                (including nuclear), military bases and installations, 
                and other similar facilities as determined by the 
                Secretary.
                    ``(J) Whether the project is located in or would 
                primarily benefit economically disadvantaged 
                communities, including environmental justice 
                communities, underserved communities, or communities 
                located in areas of persistent poverty.
            ``(2) Secondary considerations.--In awarding grants under 
        the Program, the Secretary shall consider the following 
        secondary factors:
                    ``(A) Improvement in air quality, including 
                reductions in greenhouse gas emissions.
                    ``(B) Decrease in train noise.
                    ``(C) Increase in economic development.
                    ``(D) Improvements to commuter and intercity 
                passenger rail service and on-time performance.
                    ``(E) Improvements to the rail freight network.
                    ``(F) The applicant's history of demonstrating 
                financial commitment to, and funding of, similar 
                projects.
                    ``(G) Any other factors as determined by the 
                Secretary.
            ``(3) Prohibited considerations.--In awarding grants under 
        this section, the Secretary may not--
                    ``(A) limit the amount of grants or assistance 
                projects located in 1 State can receive; or
                    ``(B) take into consideration the amount of new 
                non-Federal revenue an applicant has raised.
    ``(g) Competitive Process and Evaluation of Eligible Projects Other 
Than Large Projects.--
            ``(1) Competitive process.--
                    ``(A) In general.--The Secretary shall--
                            ``(i) for the first fiscal year for which 
                        funds are made available for obligation under 
                        the Program, not later than 60 days after the 
                        date on which the template under subparagraph 
                        (B)(i) is developed, and in subsequent fiscal 
                        years, not later than 60 days after the date on 
                        which amounts are made available for obligation 
                        under the Program, solicit grant applications 
                        for eligible projects other than large 
                        projects; and
                            ``(ii) not later than 120 days after the 
                        date on which the solicitation under clause (i) 
                        expires, conduct evaluations under paragraph 
                        (3).
                    ``(B) Requirements.--In carrying out subparagraph 
                (A), the Secretary shall--
                            ``(i) develop a template for applicants to 
                        use to summarize project needs and benefits, 
                        including benefits described in paragraph 
                        (3)(B)(i); and
                            ``(ii) enable applicants to use data from 
                        the national crossing inventory under section 
                        20160 of title 49 to populate templates 
                        described in clause (i), as applicable.
            ``(2) Applications.--An eligible entity shall submit to the 
        Secretary an application at such time, in such manner, and 
        containing such information as the Secretary may require.
            ``(3) Evaluation.--
                    ``(A) In general.--Prior to providing a grant under 
                this subsection, the Secretary shall--
                            ``(i) conduct an evaluation of each project 
                        for which an application is received under this 
                        subsection; and
                            ``(ii) assign a quality rating to the 
                        project on the basis of the evaluation under 
                        clause (i).
                    ``(B) Requirements.--In carrying out an evaluation 
                under subparagraph (A), the Secretary shall--
                            ``(i) consider information on project 
                        benefits submitted by the applicant using the 
                        template developed under paragraph (1)(B)(i), 
                        including how and to what extent the project 
                        will address the factors listed in subsection 
                        (e); and
                            ``(ii) consider whether and the extent to 
                        which the benefits, including the benefits 
                        described in clause (i), are more likely than 
                        not to outweigh the total project costs.
                    ``(C) Data driven process.--In evaluating projects 
                under this section, the Secretary shall--
                            ``(i) evaluate each project using a 
                        quantitative approach to the extent practical; 
                        and
                            ``(ii) may use all or parts of the 
                        methodology required to be developed for large 
                        projects in subsection (h).
                    ``(D) Publication of methodology and ratings.--The 
                Secretary shall--
                            ``(i) publish on the Department of 
                        Transportation's website the methodology 
                        developed in paragraph (C) to evaluate projects 
                        submitted under this section; and
                            ``(ii) not later than 30 days after 
                        announcing an intent to award funds under this 
                        section, post on the Department of 
                        Transportation's website any ratings or scores 
                        developed for each eligible application that 
                        submitted an application.
    ``(h) Competitive Process, Evaluation, and Annual Report for Large 
Projects.--
            ``(1) In general.--The Secretary shall establish an annual 
        date by which an eligible entity submitting an application for 
        a large project shall submit to the Secretary such information 
        as the Secretary may require, including information described 
        in paragraph (2), in order for a large project to be considered 
        for a recommendation by the Secretary for funding in the next 
        annual report under paragraph (6).
            ``(2) Information required.--The information referred to in 
        paragraph (1) includes--
                    ``(A) all necessary information required for the 
                Secretary to evaluate the large project; and
                    ``(B) information sufficient for the Secretary to 
                determine that--
                            ``(i) the large project meets the 
                        applicable requirements under this section; and
                            ``(ii) there is a reasonable likelihood 
                        that the large project will continue to meet 
                        the requirements under this section.
            ``(3) Notice of determination.--On making a determination 
        that information submitted to the Secretary under paragraph (1) 
        is sufficient, the Secretary shall provide a written notice of 
        that determination to--
                    ``(A) the entity that submitted the application;
                    ``(B) the Committee on Environment and Public Works 
                of the Senate; and
                    ``(C) the Committee on Transportation and 
                Infrastructure of the House of Representatives.
            ``(4) Evaluation.--The Secretary may recommend a large 
        project for funding in the annual report under paragraph (6) 
        only if the Secretary evaluates the proposed project and 
        determines that the project is justified because the project--
                    ``(A) addresses a need to eliminate the grade 
                crossing as determined by the Secretary, consistent 
                with the goals of the Program under subsection (b)(2);
                    ``(B) will generate significant benefits based upon 
                the factors listed in subsection (f);
                    ``(C) is cost effective based on an analysis of 
                whether the benefits described in subparagraph (B) are 
                expected to outweigh the project costs; and
                    ``(D) is supported by other Federal or non-Federal 
                financial commitments or revenues adequate to fund 
                completion of the project or project phase.
            ``(5) Ratings.--
                    ``(A) In general.--The Secretary shall create a 
                data driven ranking to evaluate, rate, and rank large 
                projects. The Secretary shall develop a methodology 
                that--
                            ``(i) quantifies numerically each factor 
                        listed in subsection (f)(1) to the extent 
                        practical;
                            ``(ii) calculates a numerical safety score 
                        based on how the project would improve safety 
                        through the factors listed in subsection 
                        (f)(1);
                            ``(iii) evaluates on a 5-point scale (the 
                        points of which include `high', `medium-high', 
                        `medium', `medium-low', and `low') the benefits 
                        of the project for each of the factors listed 
                        in subsection (f)(2); and
                            ``(iv) evaluates on a 5-point scale (the 
                        points of which include `high', `medium-high', 
                        `medium', `medium-low', and `low') how each 
                        project meets subparagraphs (4)(C) and (4)(D).
                    ``(B) Overall weighting.--The Secretary shall 
                develop and publish on the Department of 
                Transportation's website a methodology that explains 
                how the Secretary will create an overall rating for 
                each project by weighting each rating in subparagraph 
                (A) when awarding grants under this section. The 
                Secretary shall give at least 50 percent weight to the 
                `safety score' calculated under subparagraph (A)(ii).
                    ``(C) Prioritization.--The Secretary shall 
                prioritize funding for those projects scoring highest 
                under subparagraph (B). To be considered justified and 
                receive a recommendation for funding in the annual 
                report under paragraph (6), a project shall receive a 
                `satisfactory' rating for each rating required under 
                subparagraph (A). The Secretary shall determine and 
                publish what is considered a `satisfactory' rating for 
                the purposes of this subparagraph.
                    ``(D) Posting of ratings.--Not later than 30 days 
                after announcing an intent to award funds under this 
                section, the Secretary shall post on the Department of 
                Transportation's website the overall ranking and 
                scores, including the score for each metric quantified 
                under paragraph (5)(A), for each eligible large 
                application that submitted an application.
            ``(6) Annual report on funding recommendations for large 
        projects.--
                    ``(A) In general.--Not later than the first Monday 
                in February of each year, the Secretary shall submit to 
                the Committees on Transportation and Infrastructure and 
                Appropriations of the House of Representatives and the 
                Committees on Environment and Public Works and 
                Appropriations of the Senate a report that includes--
                            ``(i) a list of large projects that have 
                        requested a recommendation for funding under a 
                        new grant agreement from funds anticipated to 
                        be available to carry out this subsection in 
                        the next fiscal year;
                            ``(ii) the evaluation under paragraph (4) 
                        and ratings under paragraph (5) for each 
                        project referred to in subsection (j); and
                            ``(iii) the grant amounts that the 
                        Secretary recommends providing to large 
                        projects in the next fiscal year, including--
                                    ``(I) scheduled payments under 
                                previously signed multiyear grant 
                                agreements under subsection (j);
                                    ``(II) payments for new grant 
                                agreements, including single-year grant 
                                agreements and multiyear grant 
                                agreements;
                                    ``(III) a description of how 
                                amounts anticipated to be available for 
                                the Program or the President's budget 
                                request for that fiscal year will be 
                                distributed; and
                                    ``(IV) for each project for which 
                                the Secretary recommends a new 
                                multiyear grant agreement under 
                                subsection (j), the proposed payout 
                                schedule for the project.
                    ``(B) Limitations.--The Secretary shall not 
                recommend in an annual report under this paragraph a 
                new multiyear grant agreement unless the Secretary 
                determines that the project can be completed using 
                funds that are anticipated to be available in future 
                fiscal years.
                    ``(C) Considerations.--In selecting projects to 
                recommend for funding in the annual report under this 
                paragraph, the Secretary shall--
                            ``(i) consider the amount of funds 
                        available in future fiscal years for multiyear 
                        grant agreements as described in subparagraph 
                        (B); and
                            ``(ii) assume the availability of funds in 
                        future fiscal years for multiyear grant 
                        agreements that extend beyond the period of 
                        authorization based on the amount made 
                        available for large projects under the Program 
                        in the last fiscal year of the period of 
                        authorization.
    ``(i) Eligible Project Costs.--
            ``(1) In general.--A grant received for a project under the 
        Program may be used for--
                    ``(A) development phase activities, including 
                planning, feasibility analysis, revenue forecasting, 
                environmental review, preliminary engineering and 
                design work, and other preconstruction activities; and
                    ``(B) construction, reconstruction, rehabilitation, 
                acquisition of real property (including land related to 
                the project and improvements to the land), 
                environmental mitigation, construction contingencies, 
                acquisition of equipment, and operational improvements 
                directly related to improving system performance.
            ``(2) Prohibition of a certain limitation.--The Secretary 
        shall not limit eligible projects from consideration for 
        funding for planning, engineering, environmental, construction, 
        and design elements of the same project in the same 
        application.
    ``(j) Multiyear Grant Agreements for Large Projects.--
            ``(1) In general.--A large project that receives a grant 
        under the Program in an amount of not less than $100,000,000 
        may be carried out through a multiyear grant agreement in 
        accordance with this subsection.
            ``(2) Requirements.--A multiyear grant agreement for a 
        large project described in paragraph (1) shall--
                    ``(A) establish the terms of participation by the 
                Federal Government in the project;
                    ``(B) establish the maximum amount of Federal 
                financial assistance for the project in accordance with 
                paragraphs (1) and (2) of subsection (c);
                    ``(C) establish a payout schedule for the project 
                that provides for disbursement of the full grant amount 
                by not later than 4 fiscal years after the fiscal year 
                in which the initial amount is provided;
                    ``(D) determine the period of time for completing 
                the project, even if that period extends beyond the 
                period of an authorization; and
                    ``(E) attempt to improve timely and efficient 
                management of the project, consistent with all 
                applicable Federal laws (including regulations).
            ``(3) Special financial rules.--
                    ``(A) In general.--A multiyear grant agreement 
                under this subsection--
                            ``(i) shall obligate an amount of available 
                        budget authority specified in law; and
                            ``(ii) may include a commitment, contingent 
                        on amounts to be specified in law in advance 
                        for commitments under this paragraph, to 
                        obligate an additional amount from future 
                        available budget authority specified in law.
                    ``(B) Statement of contingent commitment.--The 
                agreement shall state that the contingent commitment is 
                not an obligation of the Federal Government.
                    ``(C) Interest and other financial costs.--
                            ``(i) In general.--Interest and other 
                        financing costs of carrying out a part of the 
                        project within a reasonable time shall be 
                        considered a cost of carrying out the project 
                        under a multiyear grant agreement, except that 
                        eligible costs may not be more than the cost of 
                        the most favorable financing terms reasonably 
                        available for the project at the time of 
                        borrowing.
                            ``(ii) The applicant shall certify to the 
                        Secretary that the applicant has shown 
                        reasonable diligence in seeking the most 
                        favorable financing terms.
            ``(4) Advance payment.--Notwithstanding any other provision 
        of law, an entity carrying out a large project under a 
        multiyear grant agreement--
                    ``(A) may use funds made available to the entity 
                under this title for eligible project costs of the 
                large project until the amount specified in the 
                multiyear grant agreement for the project for that 
                fiscal year becomes available for obligation; and
                    ``(B) if the entity uses funds as described in 
                subparagraph (A), the funds used shall be reimbursed 
                from the amount made available under the multiyear 
                grant agreement for the project.
    ``(k) Undertaking Parts of Projects in Advance Under Letters of No 
Prejudice.--
            ``(1) In general.--The Secretary may pay to an applicant 
        all eligible project costs under the Program, including costs 
        for an activity for an eligible project incurred prior to the 
        date on which the project receives funding under the Program 
        if--
                    ``(A) before the applicant carries out the 
                activity, the Secretary approves through a letter to 
                the applicant the activity in the same manner as the 
                Secretary approves other activities as eligible under 
                the Program;
                    ``(B) a record of decision, a finding of no 
                significant impact, or a categorical exclusion under 
                the National Environmental Policy Act of 1969 (42 
                U.S.C. 4321 et seq.) has been issued for the eligible 
                project; and
                    ``(C) the activity is carried out without Federal 
                assistance and in accordance with all applicable 
                procedures and requirements.
            ``(2) Interest and other financing costs.--
                    ``(A) In general.--For purposes of paragraph (1), 
                the cost of carrying out an activity for an eligible 
                project includes the amount of interest and other 
                financing costs, including any interest earned and 
                payable on bonds, to the extent interest and other 
                financing costs are expended in carrying out the 
                activity for the eligible project, except that interest 
                and other financing costs may not be more than the cost 
                of the most favorable financing terms reasonably 
                available for the eligible project at the time of 
                borrowing.
                    ``(B) The applicant shall certify to the Secretary 
                that the applicant has shown reasonable diligence in 
                seeking the most favorable financing terms under 
                subparagraph (A).
            ``(3) No obligations or influence on recommendations.--An 
        approval by the Secretary under paragraph (1)(A) shall not--
                    ``(A) constitute an obligation of the Federal 
                Government; or
                    ``(B) alter or influence any evaluation under 
                subsections (g)(3)(A)(i) or (h)(4) or any 
                recommendation by the Secretary for funding under the 
                Program.
    ``(l) Congressional Notification.--Not later than 30 days before 
making a grant under the Program, the Secretary shall submit to the 
Committee on Transportation and Infrastructure of the House of 
Representatives and the Committee on Environment and Public Works of 
the Senate a written notification of the proposed grant that includes--
            ``(1) an evaluation and justification for the eligible 
        project; and
            ``(2) the amount of the proposed grant.
    ``(m) Reports.--
            ``(1) Annual report.--Not later than August 1 of each 
        fiscal year, the Secretary shall make available on the website 
        of the Department of Transportation an annual report that lists 
        each eligible project for which a grant has been provided under 
        the Program during the fiscal year.
            ``(2) GAO assessment and report.--Not later than 3 years 
        after the date of enactment of this section, the Comptroller 
        General of the United States shall--
                    ``(A) conduct an assessment of the administrative 
                establishment, solicitation, selection, and 
                justification process with respect to the funding of 
                grants under the Program; and
                    ``(B) submit to the Committee on Transportation and 
                Infrastructure of the House of Representatives and the 
                Committee on Environment and Public Works of the Senate 
                a report that describes--
                            ``(i) the adequacy and fairness of the 
                        process under which each eligible project that 
                        received a grant under the Program was 
                        selected; and
                            ``(ii) the justification and criteria used 
                        for the selection of each eligible project.
    ``(n) Authorization of Appropriations.--There is authorized to be 
appropriated $500,000,000 for each of the fiscal years 2022 through 
2026 to carry out this section.''.
    (b) Clerical Amendment.--The table of contents for chapter 1 of 
title 23, United States Code, is amended by inserting after the item 
relating to section 130 the following:

``130A. Railway-highway crossing separation program.''.
                                 <all>
Building Much Needed Rail Grade Separations Act of 2021
To amend title 23, United States Code, to establish a dedicated, competitive highway-rail grade separation program, and for other purposes.
Building Much Needed Rail Grade Separations Act of 2021
Rep. Garcia, Jesus G. "Chuy"