Are there reporting requirements associated with the transportation infrastructure funding?

The White House indicated that it would, in conjunction with the U.S. Office of Management and Budget (“OMB”), release formal guidance to agencies in January 2022 on a number of topics including financial oversight and reporting.[1] However, at the time of this writing, the White House has yet to release this guidance.

The Infrastructure Investment and Jobs Act (the “IIJA”) does provide some general reporting requirements associated with the transportation funding outlined below. These requirements are for the federal government, but municipalities should document and be prepared to provide such data to the U.S. Department of Transportation or other federal agencies for reporting purposes upon request. To the extent that the federal government issues reporting requirements to IIJA funding recipients, the requirements will likely differ among programs. In anticipation of further guidance from the government, municipalities should review the IIJA closely for specific requirements that trigger documentation and reporting to comply with any federal reporting requests.

Some good practices municipalities may wish to keep in mind relating to reporting requirements include documenting the use of funds and key decisions made by leadership on how IIJA-funded programs will be designed, implemented, and reviewed for compliance with the terms and conditions of the funding source. Municipalities should also document policies and procedures regarding procurement and contracting, the methodology for evaluating and awarding IIJA funds to subrecipients, financial controls, documentation management systems and processes, and evaluations of potential conflicts of interest.

The reporting requirements outlined for the federal government are:

Annual Reporting by the U.S. Department of Transportation

Per Section 11319 – Annual Report of the IIJA, the U.S. Department of Transportation must submit an annual report to Congress on all projects or activities carried out with U.S. Department of Transportation funds that are more than five years behind schedule, or for which the total amount spent on the project is at least $1 billion more than the original cost estimate. The Annual Report should include:

1. a brief description of the covered project. A covered project means a project or activity carried out with funds provided by the U.S. Department of Transportation, including a project carried out under title 23 or 49.
   1. the purpose of the covered project;
   2. each location in which the covered project is carried out;
   3. the contract or award number of the covered project, if applicable;
   4. the year in which the covered project was initiated;
   5. the Federal share of the total cost of the covered project; and
   6. each primary contractor, subcontractor, grant recipient, and subgrantee recipient of the covered project;
2. an explanation of any change to the original scope of the covered project, including by the addition or narrowing of the initial requirements of the covered project;
3. the original expected date for completion of the covered project;
4. the current expected date for completion of the covered project;
5. the original cost estimate for the covered project, as adjusted to reflect increases in the Consumer Price Index for All Urban Consumers, as published by the Bureau of Labor Statistics;
6. the current cost estimate for the covered project, as adjusted to reflect increases in the Consumer Price Index for All Urban Consumers, as published by the Bureau of Labor Statistics;
7. an explanation for a delay in completion, or an increase in the original cost estimate, for the covered project, including, where applicable, any impact of insufficient or delayed appropriations; and
8. the amount of and rationale for any award, incentive fee, or other type of bonus, if any, awarded for the covered project.[2]

Periodic Updates to Highway-Rail Crossing Reports and Plans

In Section 22403 – Periodic Updates to Highway-Rail Crossing Reports and Plans, the IIJA states that:

(a) Reports – Not later than 4 years after the date by which States are required to submit State highway-rail grade crossing action plans under section 11401(b) of the Fixing America’s Surface Transportation Act (49 U.S.C. 22907 note), the Administrator of the Federal Railroad Administration, in consultation with the Administrator of the Federal Highway Administration, shall submit a report to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives that summarizes the State high-rail grade crossing action plans, including:

1. an analysis and evaluation of each State railway-highway crossings program under section 130 of title 23, including:
   1. compliance with section 11401 of the Fixing America’s Surface Transportation Act and section 130(g) of title 23; and
   2. the specific strategies identified by each State to improve safety at highway-rail grade crossings, including crossing with multiple accidents or incidents;
2. the progress of each State in implementing its State highway-rail grade crossings action plan;
3. the number of highway-rail grade crossing projects undertaken pursuant to section 130 of title 23, including the distribution of such projects by cost range, road system, nature of treatment, and subsequent accident experience at improved locations;
4. which States are not in compliance with their schedule of projects under section 130(d) of title 23; and
5. any recommendations for future implementation of the railway-highway crossings program under section 130 of title 23.

(b) Updates – Not later than 5 years after the submission of the report required under subsection (a), the Administrator of the Federal Railroad Administration, in consultation with the Administrator of the Federal Highway Administration, shall include:

1. update the report based on the State annual reports submitted pursuant to section 130(g) of title 23 and any other information obtained by, or available to, the Administrator of the Federal Railroad Administration; and
2. submit the updated report to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives.[3]

Quarterly Reports on Positive Train Control System Performance

Section 22414 of the IIJA outlines Quarterly Reports on Positive Train Control (“PTC”) System Performance and states that:

[e]ach host railroad subject to this section or subpart I or part 236 of title 49, Code of Federal Regulations, shall electronically submit to the Secretary of Transportation a Report of PTC system performance on form FRA F 6180.152, which shall be submitted on or before the applicable due date . . . , which shall be separated by the host railroad, each applicable tenant railroad, and each positive train control governed track segment, consistent with the railroad’s positive train control Implementation Plan . . . .[4]

Each report submitted shall include:

1. The number of positive train control system initialization failures, disaggregated by the number of initialization failures for which the source or cause was the onboard subsystem, the wayside subsystem, the communications subsystem, the back-office subsystem, or a non-positive train control component;
2. The number of positive train control system cut outs, disaggregated by each component listed in subparagraph (A) that was the source or cause of such cut outs;
3. The number of positive train control system malfunctions, disaggregated by each component listed in subparagraph (A) that was the source or cause of such malfunctions;
4. The number of enforcements by the positive train control system;
5. The number of enforcements by the positive train control system in which it is reasonable to assume an accident or incident was prevented;
6. The number of scheduled attempts at initialization of the positive train control system;
7. The number of train miles governed by the positive train control system; and
8. A summary of any actions the host railroad and its tenant railroads are taking to reduce the frequency and rate of initialization failures, cut outs, and malfunctions, such as any actions to correct or eliminate systemic issues and specific problems.
9. Due Dates
   1. Each host railroad shall electronically submit the report requested no later than the following:
      1. April 30, for the period from January 1 through March 31;
      2. July 31, for the period from April 1 through June 30;
      3. October 31, for the period from July 1 through September 30; and
      4. January 31, for the period from October 1 through December 31 of the prior calendar year.
   2. Beginning on the date that is 3 years after the date of enactment of the Passenger Rail Expansion and Rail Safety Act of 2021, the Secretary shall reduce the frequency with which host railroads are required to submit the report not less frequently than twice per year, unless the Secretary:
      1. determines that quarterly reporting is in the public interest; and
      2. publishes a justification for such determination in the Federal Register.[5]

Federal Railroad Administration Reporting Requirements

Section 22421 – Federal Railroad Administration Reporting Requirements of the IIJA indicates for safety reporting that:

Not later than 1 year after the date of enactment of this Act, and annually thereafter for the following 4 years, the Secretary shall update Special Study Block 49 on Form FRA F 6180.54 (Rail Equipment Accident/Incident Report) to collect, with respect to trains involved in accidents…

1. The number of cars and length of the involved trains; and
2. The number of crew members who were aboard a controlling locomotive involved in an accident at the time of such accident.[6]

Workforce Diversity Report

Section 25019(b) – Workforce Diversity Report of the IIJA requires the U.S. Department of Transportation to submit a Workforce Diversity Report to Congress followed by a model plan for states, local governments, and private sector entities to use. The report and model plan must address methods to enhance pre-apprenticeship programs, improve transportation workforce diversity, and encourage subrecipients to establish outreach and support programs.[7]

Buy America

Section 11513 – Buy America of the IIJA indicates that Buy America waivers for Title 23 projects require public notice of proposed waivers, public comment, and annual reporting to Congress.[8]

Reporting requirements will differ among programs. In anticipation of further guidance from the White House and OMB on reporting on financial oversight and reporting, labor, Made in America/Buy America, environmental and the like, municipalities should review the IIJA closely for major requirements that trigger documenting and reporting to ensure compliance with any federal reporting requests.