What’s Next for the BIL at the Department of Transportation?

More than a year after enactment of the Bipartisan Infrastructure Law (BIL), agencies across the federal government are still working to fully implement it. Understandably, the first item of business has been getting BIL funds out the door. But the law also includes a wide variety of statutory changes, pilot programs, and technical provisions. To fulfill the promise of the BIL to transform America’s infrastructure, attention must now turn to other elements of the law.

At the U.S. Department of Transportation (USDOT), which received the bulk of BIL funding, most grant programs have opened for at least one round of applications (though some are still pending, including the competitive PROTECT, Congestion Relief, and Active Transportation Infrastructure Investment Programs). Several other elements of the BIL, including technical assistance and pilot programs as well as regulations and guidance documents, are still in development.

Technical Assistance and Pilot Programs

The BIL authorized several technical assistance programs to complement USDOT’s already extensive offerings. This will help state and local agencies deliver projects more quickly and cost effectively. In addition, the BIL included a number of pilot programs to test specific concepts and strategies. Several of these programs have yet to be launched.

Intended to help prepare for a transition away from the gas tax as the primary revenue source for federal transportation spending, two of the pending programs relate to infrastructure financing:

• The National Motor Vehicle Per-Mile User Fee Pilot (BIL Section 13002) will assess the viability of a national per-mile user fee to provide a sustainable revenue source for the Highway Trust Fund. While experts have discussed this approach for years, and a handful of states have piloted mileage-based user fees (alternatively called vehicle miles traveled fees), a national pilot offers the opportunity to fully assess the merits and challenges of this approach.
• The Transfer and Sale of Toll Credits Pilot Program (BIL Section 11503) will set up an exchange in which selected states can buy and sell toll credits. Federal law allows states to apply toll revenue that they reinvest in transportation toward the local match required on federally funded transportation projects. At the end of federal fiscal year 2022, 28 states had more than $38 billion in unused toll credits. The exchange program will assess whether allowing sales of toll credits across states will enable more use of toll credits and will evaluate the impact on overall transportation expenditures.

The BIL also authorized several programs to build analytical capacity at the state and local levels, which has been a barrier to effective project planning and partnerships with the private sector. Key upcoming programs include:

• The Asset Concession and Innovative Finance Program (BIL Section 71001) will provide grants to states, localities, and tribal governments to help them identify, analyze, and plan potential public-private partnerships. This program can improve the ability of public sector agencies to engage with the private sector, bringing additional capital and expertise to bear on infrastructure challenges.
• The Rural and Tribal Assistance Pilot Program (BIL Section 21205) will provide support to rural communities for project planning and development. Rural agencies often struggle to attract and retain the staff needed to develop and deliver major infrastructure projects, a challenge this program is designed to address.
• The Prioritization Process Pilot Program (BIL Section 11204) will offer grants to states and metropolitan planning organizations to develop objective scoring criteria to evaluate projects for inclusion in transportation plans and programs. A data-based prioritization process can improve asset management practices and elevate the projects that will provide maximum value for taxpayers.
• The Transportation Access Pilot Program (BIL Section 13010) will assist states and regional planning bodies in assessing how proposed transportation projects will affect access to destinations such as jobs, health care, education, and grocery stores. The program will evaluate various methodologies for measuring accessibility.

New Regulations and Guidance

With so many new programs and changes to prior law, the BIL calls for an extensive array of new regulations and guidance. Many of these statutory changes have broad applicability across a variety of surface transportation projects, yet without clear guidance from the Department on how they are to be implemented, their impact may be muted.

Among the items awaiting regulatory guidance are:

• Transportation planning. The BIL made several notable changes to the laws governing transportation planning. For the first time, transportation planning bodies are explicitly authorized to coordinate their plans with local and regional housing and economic development plans, formally bringing together multiple planning processes that are too often disconnected from each other. States and metropolitan planning organizations are also directed to spend at least 2.5% of their planning funds on activities to help make roads safer for all users. Planning regulations need to be updated to reflect these changes; a proposed new rule is expected later this year.
• One Federal Decision. The BIL codified the “One Federal Decision” executive order, in which a single lead agency is responsible for shepherding projects through multiagency environmental reviews and keeping agencies to one timetable. In addition, the law requires USDOT to review existing regulations and procedures to identify other potential efficiencies, with a report due to Congress by November 15, 2023. With clear guidance from USDOT, these changes should help to move major projects through the permitting process more quickly.
• Innovative financing programs. USDOT’s two main financing programs for surface transportation projects, TIFIA and RRIF, were amended in the BIL to, among other things, require that sponsors of projects over $750 million conduct a value-for-money analysis to determine whether conventional project delivery or a public-private partnership would be more appropriate. A proposed rule is scheduled to be released later this year to update existing regulations to be consistent with the BIL’s changes.
• Manual on Uniform Traffic Control Devices (MUTCD). Prior to passage of the BIL, USDOT had initiated an update of the MUTCD, which governs roadway signs, signals, pavement markings, and other traffic control devices. The BIL established a deadline of May 15, 2023, for the update to be completed, and requires USDOT to use this update to improve safety for pedestrians and bicyclists and to allow for the safe testing of autonomous vehicles. The MUTCD applies to all public streets, highways, bikeways, and private roads open to public travel, making it one of the most influential documents published by USDOT.

Conclusion

USDOT has had a full plate since the BIL passed nearly a year and half ago, and it is understandable that some requirements of the new law have not yet been addressed. The programs highlighted above promise to help make transportation projects more cost-effective, safer, and easier to deliver on time and on budget. With more than half a trillion federal dollars flowing to transportation through the BIL over the next few years, state and local agencies need access to these programs as soon as possible. Congress, too, will need to see the results of these programs in advance of the next surface transportation reauthorization, which is just three years away.