Policies for the Jurisdiction of the Transportation Committee

The automobile is on the cusp of a technological transformation with the potential to both revolutionize personal mobility and provide immeasurable safety benefits. As vehicles that operate on public roads are subject to both state, federal and local jurisdiction, the National Conference of State Legislatures (NCSL) understands the need to clearly define state and federal roles as well as avoid unnecessary federal preemption and burdensome federal mandates.

State Authority to Regulate Autonomous Vehicle Testing

NCSL agrees that the National Highway Traffic Safety Administration (NHTSA) should be the sole entity setting federal motor vehicle safety standards (FMVSS) for autonomous vehicles, equivalent to their current role for conventional vehicles. However, NCSL strongly believes that states are the sole authority when it comes to vehicle use—which includes vehicle registration; driver licensing and education; traffic laws, regulations and enforcement; and insurance and liability. NCSL is opposed to congressional or administration proposals that would seek to preempt this authority from states by prohibiting states from prescribing certain standards or regulations related to autonomous vehicle testing, including requirements related to the presence of a human driver.

FMVSS Exemptions

NCSL recognizes, appreciates, and agrees that authority to issue exemptions of FMVSS remains solely in the realm of the Secretary of Transportation. However, NCSL strongly encourages the Secretary (or applicable designated agency) to ensure that any exemption of existing motor vehicle safety standards provides a safety level at least equal to the safety level of the standard. Further, as exemptions are granted, NCSL implores the department to provide such information to states, in a timely manner.

Advisory Councils

NCSL requests that state legislators be appointed to or included in any congressional or administration task force, council, or other advisory group related to the development of autonomous vehicles. NCSL encourages congressional and administration task forces to work with NCSL to help ensure the appropriate states are included. 

Cybersecurity Information Sharing

Cybersecurity is a vital aspect of autonomous vehicles. As vehicles begin to communicate with each other (vehicle-to-vehicle or V2V) as well with infrastructure (vehicle-to-infrastructure, V2I, and V2X), the potential risk of cyberattacks and security breaches greatly increases. NCSL urges both the administration and Congress to both share any threat information with state governments and to work with states to ensure that such threats and affected vehicle populations do not become endemic. A collaborative effort is vital in ensuring such safety.

Aviation is a key component of a balanced transportation system and is vitally linked to regional growth and economic development efforts. The development and preservation of a balanced system of airports, which is responsive to the needs of all sectors of the nation, is the mutual responsibility of federal, state and local governments. Given this mutual responsibility, the National Conference of State Legislatures (NCSL) urges Congress and the administration to actively engage state legislatures in discussions on the development and preservation of our system of airports and to avoid federal mandates, preemption of state authority and where possible provide states maximum flexibility.

Finance

The following recommendations regarding aviation financing are to be viewed as a comprehensive package and not as individual parts to be implemented piecemeal.

Recognizing the safety, security, economic, and other broad public benefits of the services provided by the Federal Aviation Administration (FAA), NCSL supports efforts to:

• continue a General Fund contribution, due to military and federal usage of airport facilities and services. Maintain the Airport and Airway Trust Fund, financed by existing dedicated user taxes and charges, as the primary method of funding federal-aid aviation projects. Any federal aviation fees collected from airline ticket taxes that are diverted to non-aviation purposes should be rededicated or repealed. NCSL supports federal grant assurance provisions barring diversion of airport revenue to non-airport purposes;
• maintain the current structure of federal aviation taxes which equitably distributes the financial burden on all users;
• continue to fully fund the Airport Improvement Program (AIP) at authorized levels annually on a multi-year basis to help support needed safety, security, capacity and noise projects;
• authorize states to use AIP funds for increased security measures required by federal law at a 100-percent federal share;
• provide states maximum flexibility in the prioritization and administration of trust fund allocations, this includes aviation-related planning activities being an allowable expense;
• remove the Trust Fund from the federal unified budget;
• create a mechanism to guarantee that all revenue dedicated to the Trust Fund is spent each year for its intended purpose and that Trust Fund revenue is classified as "mandatory" spending and operate as a "pay-as-you-go" program;
• remove statutory or regulatory barriers to state and locally-generated revenues that support airport activities;
• reduce aircraft noise and a continued set-aside of AIP funds for noise abatement projects;
• continue the Passenger Facility Charges (PFCs) as a supplementary revenue source to finance airport needs;
• exempt from federal tax laws airport municipal bonds; and
• allow the use of innovative financing methods, such as state infrastructure banks and revolving loans, whenever possible to enable states to meet the funding needs of smaller airports.

State Block Grant Program

The state block grant program should be extended and expanded so that all states are eligible to participate. NCSL believes that the program should be structured to allow states the maximum flexibility in the administration of grants.

Development

NCSL supports a coordinated national plan of development as long as state plans for investment are included. As part of the development of the National Airspace System Architecture, the FAA should make every effort to consider state input. The economies of many parts of the country are dependent on the modernization of the nation's aviation system. Federal policies should support state efforts to address capacity problems through expansion. NCSL supports the increased use of former and current military airports to provide immediate capacity relief for the aviation system.

Regulation

 NCSL supports efforts to increase airport capacity and competition within the airline industry. However, NCSL remains concerned over the preservation of state authority over certain airline actions and practices. An examination should be made of other provisions of law that pertain to the ability of the state to regulate or enforce airport safety standards and practice.

Federal-Aid Program

NCSL supports the Essential Air Service (EAS) program and urges the federal government to honor its commitment to EAS.  Where EAS is terminated, proper and adequate notification to the affected community should be required and transition plans implemented.

Organized Deployment of Unmanned Aerial Systems (UAS)

Registrations of unmanned aircraft already outnumber manned aircraft which highlights the exponential growth of this technology. Although FAA has issued operational rules for commercial operators (Part 107) and is studying the potential expansion of operational rules through the drone Integration Pilot Program, they have yet to finalize formal operational rules and regulations pertaining to the use of UAS by hobbyists. This has resulted in a type of frontier mentality for use and judgment in that air space.

As the agency continues its work to integrate UAS rules and laws, NCSL recognizes FAA’s general authority over the national airspace but believes it is imperative to preserve the authority of state governments to issue reasonable restrictions on the time, manner and place of UAS operations as they relate to states’ traditional police powers, including to protect public safety and security, personal privacy, property rights and manage land use. In response to Congress imposing a nationwide registration requirement for UAS operators, NCSL supports the delegation of this authority to states in order to more effectively and efficiently capture all users. Further, NCSL strongly believes in the need for federal and state governments to work together to manage the organized deployment of recreational and commercial UAS and that states should be allowed to conduct enforcement of federal UAS rules if they so choose and that the federal government should ensure adequate resources be available to states for proper enforcement.

Other

Federal support for research and development of facilities and equipment is critical to meet the demands of the next century's air travelers. Reforms in the FAA technology procurement process should be considered.

NCSL urges Congress to act expeditiously on program reauthorizations so as to ensure continuity and to minimize negative effects bred by short-term extensions of critical programs.

Airport Infrastructure Funding

The National Conference of State Legislatures (NCSL) fully supports the goal of ensuring that airports have sufficient funding to meet their infrastructure needs, both to restore or replace critical facilities that are coming to the end of their useful lives and to build new infrastructure to enhance safety, security, and capacity to allow for expansion of air service and increased opportunities for competition among airlines.  To achieve this goal, it is essential that Congress maintain existing levels of federal grant funding, and raise the federal cap on Passenger Facility Charge (PFC) user fees, which are locally imposed and dedicated to capital improvements within the local airport system. Therefore, NCSL believes that Congress should continue to fully fund the Airport Improvement Program (AIP) at authorized levels annually on a multi-year basis and increase the federal limit on individual Passenger Facility Charge (PFC) user fee to keep up with inflation, to help ensure that airport operators have sufficient funding to implement needed safety, security, capacity and noise projects at their airports.

WHEREAS, Drones as First Responders (DFR) is a program whereby first responders’ drones are pre-positioned in a service area, ready to be launched immediately in response to an emergency call for service; and

WHEREAS, once overhead, the drone live-streams the video to responding first responders and communications centers; and

WHEREAS, DFR has proven to be an efficient and effective way of providing public safety with critical information increasing situational awareness and providing de escalation strategies keeping both first responders and the community safe; and

NOW, THEREFORE, BE IT RESOLVED, that the National Conference of State Legislatures urges Congress to require the Federal Aviation Administration (FAA) to establish a regulatory pathway for certification or approval of Beyond Visual Line of Sight Operations (BVLOS) for Unmanned Aircraft Systems for first responders to support DFR programs around the country.

State-Federal Partnership

While the federal law embodies the notion of a state-federal partnership in hazardous materials transportation safety, the National Conference of State Legislatures believes that efficient regulation of hazardous materials transportation should be accomplished through a clear delineation of regulatory authority and responsibility at each level or branch of government. The state and federal government must work together to develop and implement requirements that improve public safety. NCSL supports a federal role to:

• coordinate the national regulation of hazardous materials transportation;
• provide technical guidance to states; and
• mediate disputes among states, while states retain authority to mediate disputes among their political subdivisions.

NCSL also supports an increased federal programmatic coordination of regulatory, training and data collection activities.

Uniform Federal Standards

Uniform standards for technical requirements, routing, rerouting and notification should be developed by the federal government, in consultation with states. Federal law should not preclude state regulations that exceed the federal requirements and provide for an equal or greater degree of safety. In the absence of federal regulation in any aspect of a uniform subject, states must retain authority to regulate. States may adopt federal regulations or state requirements that are substantively the same as federal requirements. States should be allowed, through a waiver process, to establish standards that do not conform to the federal regulations.

Determination of Preemption

NCSL finds the preemption determination process to be an improvement over the preexisting "inconsistency ruling" process. The utilization of the "substantively the same as" standard in assessing state conformance with federal requirements should ensure that the effect of a state requirement does not vary in effect with the federal standard. At no point during the administrative preemption determination proceedings should a state's option to seek judicial relief be denied.

Financing

The federal government has a responsibility to fully fund any activities administered or implemented by the states that are a result of federal requirements or federal preemption of state authority.

States should have the ability to levy and retain fines for transporters without federal registration credentials.

NCSL supports states ability to retain a percentage of the proceeds resulting from successful state enforcement of the federal registration program.

States' fiscal autonomy in the regulation of fees and penalties and the expenditures of such fees and penalties should not be restricted in any manner.

Federal Registration and Permitting

Federal registration and permit programs should be reviewed for consolidation and administration by better established state programs. NCSL finds that the parallel federal programs, which questionably enhance the overall safety of hazardous materials transportation, are an unnecessary duplication of ongoing state programs and an ever-present threat to the autonomy of state-administered programs.

NCSL continues to support the recommendations of the Alliance for Uniform Hazmat Transportation Procedures to facilitate uniformity in state permitting and registration requirements. NCSL urges the U.S. DOT to provide adequate incentives to states to participate in the program, but a state should not be forced into participation by either the U.S. DOT or Congress.

The ability of states to incorporate administration of federal permit and registration requirements should also be examined for possible consolidation of dual government programs. Under current law, both state and federal programs are duly authorized.

The federal government is primarily responsible for the regulation of interstate transportation and commerce, including safety and security, while states play a critical role in administering interstate motor carrier regulations and regulating intrastate commerce. The National Conference of State Legislatures believes that the most effective way to achieve safer highways for all drivers is to involve states in the decision-making process, to treat states as equal partners with the federal government, to avoid unnecessary and burdensome federal mandates and requirements, and to promote incentive-based regulation instead of imposing federal sanctions.

NCSL encourages the continued incorporation of computerized record-keeping for motor carriers. However, any revisions to the paperwork requirements should neither usurp state taxing authority nor undermine the long-standing exercise of state constitutional police power to promote and preserve public safety.

Regulation

NCSL supports states retaining the unburdened authority to regulate intrastate commerce, and opposes preemption of state regulation of intrastate motor carrier operations based on an affiliation with, or integration of other modes of carriage.

NCSL believes that the formulation of any proposed changes or expansion of uniform national standards for regulation of interstate commerce:

• should be based on recommendations from state officials;
• must provide state legislatures with sufficient time to fully assess any proposed changes in state law; and
• should involve states in any changes to the federal regulatory scheme for interstate motor carrier registration, proof of insurance filing, and collection and payment of fees.

Routing

On state roads and streets connecting to Interstate and National Highway system truck routes, NCSL supports state authority to:

• define "reasonable access" for larger vehicles;
• consider design and operating characteristics of commercial vehicles when designating routes; and
• issue permits on a case by case basis for certain oversize and overweight carriers under appropriate conditions set and monitored by state agencies. NCSL opposes federal requirements to increase state size and weight enforcement.

Licensing

NCSL believes that states are in compliance with Motor Carrier Safety Improvement Act of 1999 relative to commercial drivers licenses and:

• should be granted continued latitude in conforming existing state licensing, testing and penalty provisions to those stipulated under federal law; and
• should have the opportunity to grant waivers of certain requirements where warranted.

NCSL recognizes that security measures may be undertaken by the federal government with regard to individuals charged with the transport of commercial merchandise and hazardous materials. NCSL is opposed to unfunded federal mandates regarding transportation security that would create excessive burdens for the individuals seeking commercial driver’s licenses and on the state governments in security checks.

Taxation

NCSL opposes any federal restrictions on the right of the states to establish the rate of state highway use taxes based upon registration, fuel purchase and use, and weight and distance considerations. NCSL rejects the premise that the incidental impact of a regulatory tax imposed by a state necessarily poses a burden to interstate commerce. Where state tax methods have been ruled unconstitutional, NCSL supports prospective calculations of court-ordered restitution. NCSL supports state administrative reforms and joint state-federal efforts to curb the evasion of highway taxes.

Vehicles operating on public highways at a gross weight of 55,000 pounds or greater must demonstrate payment of the annual federal heavy vehicle use tax (HVUT) to state departments of motor vehicles during the registration renewal process, but the IRS does not presently offer an electronic verification process creating paper-laden administrative burdens for state agencies and costly processing delays for motor carriers. NCSL encourages the IRS to cooperate closely with the states as it automates this electronic verification process to maximize carrier usage of and compliance with the IRS’ system while minimizing duplication and state costs to link into the system. Closer state-federal cooperation on this issue will improve efficiencies and economize state administrative costs.

The National Conference of State Legislatures recognizes viable passenger and freight railroad systems are essential to achieving a balanced intermodal transportation system and ensuring personal mobility, the free flow of commerce and national security. Rail must have the same financial security provided the other modes of transportation, such as highways, transit, aviation and waterways. NCSL strongly supports a dedicated source of federal funding for passenger rail service.

The increasing mix of freight, commuter and intercity passenger rail on shared tracks and rights-of-way demands that concerns over liability and costs be rationally reviewed within the context of federal legislation. Fair and equitable standards for assessing costs, risks and priority usage are a necessary component of furthering the nation's rail network for passengers and freight.

Passenger rail progress should be complementary to—not in conflict with—freight rail development. Freight railroads should be fully compensated for the use of their property by passenger trains.

States should retain the ability to enact laws that govern railroad issues. NCSL encourages Congress to repeal provisions in federal law that exempt railroad companies from certain local and state laws.

Financing and Tax Issues

NCSL supports efforts by Congress to provide investment tax credits for railroad infrastructure investments that expand capacity for the movement of both passengers and freight. Without private sector rail investment in infrastructure to accommodate increasing demand for goods movement, freight increases will necessarily be diverted to highways, further congesting and damaging America's already challenged highway infrastructure. Anticipated future revenues will be inadequate to allow the railroads to privately finance all capacity improvements required even to maintain their current market share of freight traffic.

NCSL also urges the federal government to continue to support state flexibility in financing rail service in states. NCSL favors a range of options including grants, guaranteed loans, tax exempt bonds, public-private partnerships and targeted federal investment. The present state volume cap on bond financing with exemption from federal taxation imposes an artificial restraint on the use of such bonds for rail projects and should be eliminated.

NCSL further urges the federal government to allow states flexibility to use a portion of their allocation from the Highway Trust Fund to finance rail projects and service.

NCSL urges the federal government to continue the tax credit for short line and regional railroads as an important incentive for upgrading and modernizing inadequate track and bridge structures. This support is critical to aid states in maintaining essential branchline services that otherwise would be eliminated.

NCSL also urges the federal government to fund railroad infrastructure modernization grant programs such as “Capital Grants for Class II and Class III Railroads” program at 49 USC §22301 and the “Capital Grants for Rail Line Relocation” program at 49 USC §20154.

Federal laws that preempt the role of state courts by giving federal courts jurisdiction to establish the valuation of property for state and local tax purposes, or that give selected classes of state and local taxpayers procedural and substantive privileges unavailable to most taxpayers, offend principles both of federalism and equity.

NCSL urges the federal government to provide federal highway safety incentive grants to states to advance innovative pilot programs. These programs would increase enforcement of grade crossing traffic laws at both active and passive crossings.

Passenger Rail and High-Speed Rail

Successful evolution of an intercity passenger rail network throughout the United States, including dedicated high-speed corridors, will require cooperation among all levels of government. States will play a significant role in developing the high-speed and intercity passenger rail system, including developing state rail plans, providing funding and financing, conducting studies and analyses, securing rights-of-way, materials testing, construction, acquisition, inspections and determining where the train system interfaces with state transportation facilities.

NCSL urges the federal government to provide all possible assistance to increase the states’ capacity to meet their expanded role in rail planning and evaluation under the provisions of the federal Passenger Rail Investment and Improvement Act of 2008. NCSL especially urges the federal government to increase the availability of voluntary planning and evaluation tools and to provide ongoing, permanent and dedicated funding to assist states with the planning and development of high-speed and intercity passenger rail. States require assistance in establishing cost estimates for building and operating high-speed and intercity passenger rail systems; benchmarking to gauge proposed projects and improvements; and developing and implementing key performance measures.

State legislators should be included in developing any federal guidelines for state models for rail governance and oversight. Any federal guidelines should continue to provide the states maximum flexibility over rail issues.

• Amtrak – The continued economic viability of Amtrak and other passenger rail providers is in the national interest. Federal funding should account for existing revenue deficiencies for Amtrak and other passenger rail providers and provide adequate funding for a capital improvement program.

• Intercity passenger rail – State and local support of intercity passenger rail systems has been critical to alleviating congestion, mitigating environmental concerns, and providing a feeder system to Amtrak. Federal support for these efforts is imperative. The federal government should provide a funding source for the states to implement cost-effective, efficient passenger rail as it does for other modes of transportation—motor vehicle, transit, air and waterway.

• Commuter rail – Commuter rail facilities using track owned by private freight companies have become an important part of the transportation system in urban areas. Use of track by commuter rail on an appropriate priority basis should be negotiated with the owner of the railroad track.

• High-Speed Rail – NCSL urges the federal government to support the states in meeting their expanded role in high-speed and intercity passenger rail and to facilitate interstate coordination as well as relationships among diverse stakeholders. NCSL also urges the federal government to support and facilitate the efficient integration of the high-speed rail network with local transportation systems to ensure the success of both. NCSL further recognizes that railroads over whose rights-of-way many high-speed rail authorities will operate have a legitimate concern over increased exposure to liability as a result of high-speed rail operations. This liability issue must be addressed by Congress in the context of high-speed rail legislation. NCSL requests that state legislators be included in ongoing cooperative agreements to explore solutions to this problem. The long-term goal in certain corridors should be track that is dedicated to high-speed service exclusively, in accordance with the U.S. Department of Transportation’s definition of high-speed rail. The federal government should facilitate the steps to reach that goal over time.

• Research and Development – The federal government should continue to support research and development of advanced passenger rail technologies. Federal research should provide best practices and strategic assistance to states negotiating with freight-rail ownership of rights of way, in order to enhance on-time performance, frequency, speed and safety of passenger and freight facilities operating on the same track. Federal policy should encourage U.S. technology development and production while incorporating all other technologies.

• Planning and Evaluation – The ongoing development by the Federal Railroad Administration of the first National Rail Plan in the United States—in collaboration with the states and consistent with state rail plans, under the provisions of the federal Passenger Rail Investment and Improvement Act of 2008—is encouraging. A comprehensive strategic plan establishing clear, long-range national goals and defining stakeholders’ roles is necessary to build and strengthen an integrated, cohesive, and optimized interstate high-speed and intercity passenger rail network. NCSL urges the federal government to continue work on this key policy document, and requests that state legislators be included in its development.

Freight Rail

The states and the federal government have an interest in supporting an efficiently managed and well-maintained national freight railroad. It is a federal responsibility to ensure a competitive environment for the transport of freight. NCSL recognizes the interest of the states in preserving rail lines that are essential to local and regional commerce.

• Regulation – NCSL generally supports efforts designed to improve the regulatory climate of the freight rail industry by reducing the number of regulatory restraints that adversely affect the industry's economic performance. The regulatory needs of the railroad industry should be balanced with the captive shippers who have no alternative means of transportation available. NCSL also supports efforts to improve the regulatory climate of passenger rail.
• Other – The right of federal eminent domain should be granted only when there is a compelling national need for an alternative means of freight transportation.

Safety and Security

NCSL supports a continued federal role in setting national performance and safety goals. NCSL urges Congress to provide incentive funding to promote comprehensive rail safety programs in the states.

• NCSL urges the federal government to fully fund increased security measures needed in the passenger rail system, such as security checkpoints prior to boarding, luggage inspection and improved security of rail tunnels, rail bridges, rail switching areas and other areas identified by the Secretary of Homeland Security as posing significant risks to public safety and security and the movement of interstate commerce. This effort should take into account the impact that any proposed security measure might have on providing rail service, deploying chemical and biological weapon detection equipment, dealing with the immediate and long-term economic impact of measures that may be required to address those risks, and training employees in terrorism response activities.
• Trespassing – NCSL recognizes that the vast number of injuries and fatalities associated with the railroad industry are due to trespassing incidents. The role of the federal government in this arena is appropriately one of conducting research and facilitating public awareness of the danger and the illegality of trespassing under state law.
• Grade crossings – NCSL recognizes the inherent risks of highway-rail grade crossings where motorists disregard even active warning devices and gates. Federal funding through the Section 130 program should be continued and increased to adequately compensate states and to provide states with incentives for reaching federal standards for grade crossing warning devices. The Federal Railroad Administration (FRA) is encouraged to finance a long-term national grade crossing safety awareness campaign. Federal preemption has effectively limited the role and responsibility of states over most aspects of rail transportation. However, state law has been preserved in some areas related to tort liability in accidents involving railroads; responsibility of motorists and pedestrians in yielding to rail traffic; and overall decisions on grade warning devices or closings. NCSL strongly opposes efforts by the federal government to preempt traditional state authority in these areas, to replace state statutes governing violations by motor vehicles and penalties for failing to yield to an oncoming train, or to establish numeric standards for crossing closings to be accomplished by states.
• Research – Additional grade crossing research should be conducted in such areas as driver response to existing warning devices, improved crossing warning devices, low-cost active warning devices, off-track train detection systems, train conspicuity (reflectorization), locomotive conspicuity (lights), and audible warning technology (whistles/horns).

NCSL urges Congress and the administration to continue to work with NCSL and its members on implementation of REAL ID that recognize national security but do not impede the sovereignty of state licenses of place a federal agency or agent as permanent and ongoing authority for determining state license uses and requirements. NCSL supports efforts to extend existing deadlines until obstacles to implementation are addressed. In addition, NCSL supports the use of waivers by the Secretary of the Department of Homeland Security, for states that have adopted other forms of compatible identification.

WHEREAS, the National Conference of State Legislatures wishes to support sound public policies that encourage states to take matters into their own control to protect human life, preserve mobility and enhance economic development by creating state-funded, highway-railroad grade crossing safety enhancements, including roadway separations and eliminations; and

WHEREAS, there are more than 200,000 at-grade, public railroad crossings throughout the country; and

WHEREAS, thanks to billions of dollars of upgrades to grade crossing warning features including gates, lights and bells, since 1981 grade crossing collisions have decreased from 9,461 collisions, down 443%, to 2,131 collisions in 2021; and

WHEREAS, since 1981, grade crossing collisions have decreased from 728 fatalities, down 307%, to 237 fatalities in 2021; and

WHEREAS, since 1981 grade crossing collisions have decreased from 3,293 injuries, down 504%, to 653 injuries; and

WHEREAS, the National Association of County Officials (NACo), National League of Cities (NLC), and American Association of State Highway and Transportation Officials (AASHTO) have previously urged Congress to support improved rail safety programs, including supporting additional founding to local governments, state, and railroads to further improve grade crossings and separations allowing for safer interactions between road and rail traffic; and

WHEREAS, rail interstate networks between cities and regions provide essential transportation flow for American goods and passengers; and

WHEREAS, these rail interstate networks are essential to the American economy but in cities, towns, villages, and states throughout the country, their localized presence can cause negative externalities including road congestion for extended periods of time at rail crossings; and

WHEREAS, the federal Infrastructure Investment and Jobs Act includes approximately $3 billion in funding to be administered by the Federal Railroad Administration over the next 5 years to build new grade separations and eliminate more road-rail crossings throughout the nation; and

WHEREAS, some state legislatures have created their own, dedicated state grade crossing separation, elimination, and safety enhancement program to leverage those federal dollars in order to unlock new economic development, safety enhancements, and railroad fluidity opportunities throughout each state; and

WHEREAS, 23 U.S.C. Section 130’s Railway Highway Crossing Program was introduced in 1987 and over the past 35 years has annually funded several hundred million dollars of federal match for at-grade crossing enhancements, eliminations, and separations that have driven down vehicular and pedestrian fatalities, injuries, and collisions; and

WHEREAS, as part of IIJA, Congress increased incentive payments for grade crossing closures from the previous cap of $7,500 to the new level of $100,000 within the federal Section 130 Grade Crossing Safety Fund; and

WHEREAS, also as part of IIJA, Congress expanded the eligible activities under the Section 130 Program to now cover replacement of functionally obsolete warning devices that were improved once before in the early years using Section 130 Program funds.

NOW THEREFORE BE IT RESOLVED, the National Conference of State Legislatures encourages Congress to continue to create, expand, and enhance state and local grade crossing protection funds which have the effect of improving safety, mobility and economic development potential for both the railroads and motoring public throughout the country. 

The National Conference of State Legislatures (NCSL) calls on Congress to work closely with states to develop a shared, long-term vision for financing and funding surface transportation systems that will enhance the nation’s prosperity and the quality of life of all Americans.

The federal government plays a vital role in supporting a national surface transportation system that meets national defense needs, addresses fairly and equally the mobility needs of all Americans and facilitates interstate commerce. NCSL supports the continuation and preservation of a federal-aid surface transportation program. The federal program should direct spending to national priorities while allowing for state and insular area flexibility in local and regional variations. It is also essential that the federal-aid surface transportation program incorporate requirements and foster goals of other national policies that impact transportation decision-making.

Recent federal reauthorizations have recognized the unique contributions of each transportation mode to the productivity of the states and the nation, and to the ability of this nation to compete globally in the emerging and existing international economies. These laws contemplate an integrated transportation system for the movement of both goods and people, with increased emphasis on adopting technologies that improve productivity. NCSL urges Congress to provide states enhanced programming flexibility to meet a multitude of national goals. States should have maximum flexibility in deciding how to generate and leverage transportation revenues and how to use state and federal dollars. The ability of states to maintain flexibility in decision making and comply with environmental and other mandates is dependent upon regulatory flexibility as well as adequate and reliable funding. Such flexibility to move funds among programs allows states to better align limited federal dollars to individual state needs.

National Vision

The surface transportation system in the United States needs a new vision to guide it beyond the Interstate Highway era into the 21st century and the needs and challenges that lie ahead. Congress should look at surface transportation anew, authorizing a new program that better meets current and future needs for interstate mobility. 

Congress must clearly articulate this new national vision for surface transportation. In doing so, Congress should consider the following as federal objectives:

• Interstate commerce and freight mobility,
• Interstate movement of people,
• National defense and homeland security,
• Safety,
• Environmental and air quality preservation and improvements,
• Research and innovation, and
• Economic productivity. 

Congress should focus federal programs and funds on these interstate goals. In doing so, Congress should heed the Tenth Amendment and not intervene in or interfere with state-specific transportation priorities.

Funding and Financing

A federal trust fund, financed by user fees, should be retained as the primary method of funding federal-aid surface transportation programs. It must provide states a sustained, reliable source of transportation funding. It is critical that the Highway Trust Fund (HTF) retain spending firewalls that ensure that user fees will be deposited in the HTF to be used on surface transportation and will not be subject to non-transportation federal discretionary spending. NCSL supports states having maximum flexibility in the use of funds they receive from the HTF. Additional surface transportation financing and investment priorities include the following:

• User fees previously collected and diverted from the HTF must be reclaimed.
• Transit agencies, including commuter rail operations, should be exempt from federal fuel or energy taxes.
• Unobligated revenues should not be allowed to accumulate in the HTF. Moreover, federal highway spending should not be artificially reduced so that HTF revenues will accumulate unspent, thereby appearing to lower the federal deficit.
• Annual appropriations should equal authorized spending levels. Obligation ceilings should be set and maintained to reflect gross receipts, plus interest earned.
• Any federal user fee or container fee assessed for transportation security or infrastructure should provide for state flexibility in project selection and may include private sector input when programming projects funded by a security or infrastructure user fee or container fee.
• User fees designated for deposit in the HTF should be made available for flexible transportation usage by states. States should have flexibility in the use of funds for intercity passenger rail service, including Amtrak. The federal match should encourage state efforts in specific programs of national significance, but not discourage flexibility in state or insular area transference of categorical funds. Despite separate federal authorizing legislation for Amtrak, Congress must ensure that surface transportation authorizing legislation acknowledges and fully supports the role of passenger rail for ensuring interstate mobility. States that invest in or otherwise support passenger rail services to complement highway mobility options should be rewarded and encouraged.
• Any examination undertaken on the advisability and feasibility of establishing a federal capital budgeting program should preserve the ability of states to set surface transportation infrastructure priorities.
• Prioritize formula-based funding which allows federal funds to be distributed through a predictable and stable manner, allowing for efficient project and multi-year program delivery wherein transportation needs and projects are identified by states, metropolitan planning organizations and local elected officials for funding prioritization.
• Federal formulas designed to distribute discretionary highway funds should consider all state, insular area, and local efforts to fund highways and not be limited to fuel taxes raised.
• An increase in federal highway transportation funding is needed in the short-term to provide sufficient funding for the next authorization to meet the new vision and until a new, more stable long-term funding mechanism for surface transportation can be put in place. Any fees or taxes imposed on carbon-based fuels used by vehicles should be recognized as a traditional source for transportation funding and should remain dedicated to the Highway Trust Fund. Congress must migrate the Highway Trust Fund from a gas tax to a new national funding stream. In order to accomplish this, Congress must examine innovative ways that capture all system users. Congress should encourage pilot programs in states for experimentation with approaches, methods and mechanisms. Any system should ensure the privacy of users. 
• As the U.S. Department of Transportation (DOT) establishes the National Motor Vehicle Per-Mile User Fee Pilot as required by Congress in the Infrastructure Investment and Jobs Act, NCSL encourages the following:
• DOT should ensure that state legislators are represented on the Federal System Funding Advisory Board. Since the early 2000s, state legislatures have been at the forefront of discussions to explore possible replacements for the motor fuel tax, often leading the call for studies and demonstration projects.
• The framework of the National User Fee Pilot Program should rely heavily upon existing state expertise and in coordination with states who are considering, and who have established alternative transportation funding mechanisms.
• Apart from the existing Highway Trust Fund flows for transit, NCSL discourages expansion of federal-local funding streams without appropriate coordination with state legislatures as these complicate state-local relationships, financial arrangements, and state match expectations for transportation programs. States possess expertise with federal regulatory and statutory requirements, providing for efficient delivery of projects and ensuring that federal requirements are followed.
• Congress should continue to encourage and expand incentive-based programs, such as the Urban Partnerships program, to spur local and regional transportation innovation in full coordination with state authorities and to promote the use of tolling, congestion pricing, public transit, telecommuting, real-time traffic and other advanced technologies (also known as intelligent transportation systems), and other strategies in a comprehensive approach to achieve interstate mobility goals through urban congestion reduction.
• All funding and financing options must be available to state legislatures for state and federal-aid programs. All current federal restrictions on states' authority to toll should be removed so that states can optimize resources for capacity expansion, operations and maintenance while ensuring free flow of goods and people. Tolling, value-pricing and public-private partnerships (PPPs) should remain state provinces and are not appropriate federal funding and financing mechanisms.
• Federal guidelines should be designed to accommodate private sector support. The level of private sector participation is best determined by state and local authorities, and private participation should not be a prerequisite for receiving federal funds. Statutory or regulatory barriers to state and locally-granted revenues should be removed.  States should continue to have flexibility in creating legislative and programmatic frameworks for public-private partnerships (PPPs), and full authority to select and engage in PPP projects.
• Congress should not mandate or prescribe state use of toll revenues or tolling mechanisms, though Congress may seek to incentivize states to avoid redirection of toll revenues to non-transportation uses. 
• Congress should continue Transportation Infrastructure Finance and Innovation Act (TIFIA), Grant Anticipation Revenue Vehicles (GARVEE), private activity bond, and State Infrastructure Bank (SIB) programs. Congress should expand credit-based and loan guarantee programs to incentivize private sector investment—particularly for freight mobility by rail, highway and waterway—in projects sponsored by the public sector.
• Congressional earmarks on transportation spending or for transportation projects should represent additional funding, should be distributed from non-formula funds, and should not redirect base funding. Earmarks should fit within a national objective as defined in the surface transportation program's new vision and must appear in a state DOT's plan. 

Technology

NCSL endorses the U.S. Department of Transportation’s goal of deploying advanced technologies known as intelligent transportation systems for consumers of passenger and freight transportation across the nation. Intelligent Transportation Systems are advanced wireless technologies that maximize the safety, mobility and environmental performance of the surface transportation system. These services should be integrated, interoperable, intermodal and voluntary.

NCSL recognizes that the private sector and the federal government should lead in the development and bringing to market of reliable and affordable ITS. The federal government should also set national standards for original equipment manufacturers to install the necessary technology so that states can take full advantage of the efficiencies and safety benefits of intelligent transportation systems. Congress should require the Secretary of Transportation to initiate a rulemaking proceeding that new motor vehicles be equipped with platforms for interoperable systems that enable vehicle-to-vehicle and vehicle-to-roadside communications for the purposes of active safety and electronic tolling and tax collection and to provide a means of accelerating the deployment of this equipment in existing vehicles. 

Congress should incentivize states to explore and deploy technology for intelligent infrastructure, making it a high priority and performance measurement benchmark in the restructured federal surface transportation program. Privacy protections must be developed and incorporated into all policies and practices governing use of intelligent transportation systems and technologies. ITS should not be mandated except for legitimate governmental purposes. Any information collected with such technology should be governed by state laws.

The federal government should encourage states to cooperate with the private sector in the development of real-time traffic information systems.

Planning

Congress must work with state legislators to establish in the next authorization a robust and cooperative state-federal system to set system plans and priorities for federal investment. Transportation program plans developed by entities other than those created by the states must be coordinated with state legislatures to ensure that proposals fit into state programmatic and funding plans.

The federal government is uniquely situated to identify and collect data of importance to the development of, maintenance of, and planning for a national transportation system. Congress should incentivize states to share data with the federal government and not use mandates to elicit participation in data collection and analysis.

NCSL supports a negotiated rule-making led by U.S. Department of Transportation (USDOT), or another collaborative process congressionally mandated and facilitated by the Transportation Research Board or American Association of State Highway and Transportation Officials (AASHTO), in which NCSL and state legislatures are fully represented to determine the necessary level of and standards for uniformity among states in data collection efforts.

Performance Measures

NCSL encourages the federal government to establish a cooperative process through which performance measures can be crafted for gauging the success of programs. Federal funding should not be directly linked to performance measures; instead, a pilot program should be established in which states can voluntarily participate to gain incentives such as additional funding or reduced regulatory burdens upon successful deployment and use of performance measures. Performance measures should be framed as goals for which states may determine the specific measures and benchmarks.

Federal monitoring and compliance standards should accurately reflect compliance effort and unique state circumstances.

Freight and Interstate Commerce

Ensuring the safe and timely movement of goods across the nation is an appropriate federal transportation priority. Robust state-federal consultation should evaluate freight flows and collaboratively plan the routes and development necessary to maintain and expand the highway freight corridors.

Rail capacity expansion should be coordinated with the states to ensure intermodal cooperation and maximum public benefit.

The federal government should incentivize states to explore methods of separating highway freight traffic from passenger traffic for the purposes of efficiently moving interstate commerce and public safety.

Federal engagement with, and investment through, the states to ensure effective and efficient movement of freight through ports or other commerce choke-points is appropriate.

Environmental Issues

The federal government has a role to play in ensuring that national environmental policy meshes with national transportation policy while assuring efficient and cost-effective approaches to both goals.

• Efforts to streamline regulatory review processes must continue so that construction projects can again be realized on-time and on-budget. Congress should allow and enhance states’ programmatic permitting.
• Incentives to states to achieve environmental quality standards through transportation projects should replace prescriptive federal regulation and punitive funding actions. 

Safety

NCSL supports a continued federal role in helping to set national performance and safety goals. Safety programs should be expanded to incorporate emerging safety issues while respecting state sovereignty. Due to current prescriptive federal restrictions, many states are prevented from accessing certain federal funding for transportation safety. We urge Congress and USDOT to provide additional flexibility to states so as to ensure all states gain full access to federal funding for transportation safety. 

Federal transportation safety programs should promote comprehensive safety programs in the states. NCSL opposes the use of federal sanctions or redirection penalties to enforce federal safety standards. Federal mandates that are enforced through the use of "reprogramming" sanctions should be repealed.  Any existing federal compliance standards should reflect overall state effort to promote safety.

Research and Innovation

NCSL acknowledges that federal leadership and investment in transportation related research and innovation is needed and appropriate. In particular, NCSL supports federal research that promotes fuel efficiency, alternative fuels, high-mileage vehicles, safety and technology. Findings and best practices identified through federal research should be shared fully with states in an unbiased, nonpartisan and scientific manner.

Indian Programs

Transportation is an important service program that provides the infrastructure upon which American Indian tribes’ initiatives can be achieved. NCSL recognizes the unique and extensive transportation funding needs on Indian lands. In an effort to ensure that these needs are adequately addressed, NCSL supports a direct planning relationship between Indian Nations and state departments of transportation. NCSL further supports the continuation of the Federal Lands Program and its work with Indian reservations.

The National Conference of State Legislatures (NCSL) recognizes the substantial benefits to the nation of the U.S. system of waterways and ports by providing access to the world’s markets and the combined efforts of all levels of government and users in sharing the cost of port and waterway development and maintenance. NCSL further acknowledges the distinctive roles played by the states and the federal government in financing waterways and ports. The increase of state and local financial support in recent years should be concomitant with an increased planning authority, which is particularly important for the integration and support of other transportation systems for enhanced waterway and port activity.

Ports

NCSL believes that in order to sustain U.S. leadership in global trade:

• The nation’s ports must receive adequate federal funds to improve and maintain federal navigational channels.
• Congress should adequately fund deepening projects to modernize our ports and make full use of the Harbor Maintenance Trust Fund to maintain the nation’s harbors.
• NCSL opposes the accumulation of harbor tax receipts at the federal level, as it is a break in faith from the purpose of the Harbor Maintenance Tax and results in the imposition of a competitive burden without providing needed improvements necessary to achieve efficiencies to offset added taxes.

Intermodal Connectors

NCSL calls on Congress to significantly increase federal investment in highway, inland waterways, and rail infrastructure and provide states added flexibility to improve intermodal connectors and surface transportation systems near the nation’s ports. Where feasible, NCSL also encourages and supports the deployment of ferry crossings.

Maritime Security

NCSL believes that port security is a state-federal partnership, critical to the nation’s homeland security strategy and that states need clear federal direction to ensure that resources are focused on the most needed security improvements.

As such, NCSL supports the Department of Homeland Security’s Port Security Grant Program, which is vital to ports’ abilities to make improvements quickly and comply with the Maritime Transportation Security Act of 2002. Federal assistance should fund federal directives and requirements regarding enhanced security of publicly operated ferries and the inspection of vehicles and freight in order to avoid unfunded federal mandates.

Foreign Imports

NCSL supports:

• Action by the Federal Maritime Commission to restrict foreign cargo shipments from nations that discriminate against U.S. carriers.
• Complying with the requirements, regarding the importation of hazardous materials, of the National Environmental Policy Act to insure proper notification and assessment of environmental impact.

Inland Waterways

NCSL supports the continued predominant federal role in inland waterway capital and operating expenditures due to the interstate commerce nature of this transportation system as well as the implementation of the 2014 Water Resources Reform and Development Act (WRRDA). NCSL also supports increased investment in the Inland Waterways Trust Fund to repair and modernize the existing infrastructure. The commercial barge and towing companies, joined by a diverse coalition of stakeholders, unanimously and voluntarily requested a 45 percent increase to the per gallon user fee to address the growing backlog of needed lock and dam construction. Congress approved the increase in 2014, and should now increase the federal level of investment to lock and dam infrastructure commensurate with the increasing revenue deposited into the Inland Waterways Trust Fund, to ensure full use of these funds annually, based on industry-endorsed capital investment strategy recommendations on priority projects. NCSL supports the utilization of U.S. Department of Transportation discretionary funds for emergency assistance to states for ports and waterways.

Waterways—General

NCSL believes that:

• The role of the U.S. Coast Guard in directing waterborne traffic should be enhanced. As such, adequate emergency response plans should be developed with a review of existing contingency plans. Additionally, Congress should continue to fund the Coast Guard's Integrated Deepwater Systems program while maintaining existing funding for other transportation programs.
• The user fee method of financing expenses incurred primarily for the user's benefit is an appropriate mechanism. However, the effect of such charges in a competitive worldwide environment should be carefully scrutinized. Any assessed fees should be equitable and nondiscriminatory and should be protected in trust fund accounts with their expenditure limited to the purposes for which they were collected. As such, commercial barge and towing should be directed solely to the Inland Waterways Trust Fund. Recreational boat user fees should be directed solely to boating safety programs. Additionally, user fees should not be assessed on commercial traffic to recover uncompensated benefits to civilian navigation and search and rescue activities.
• A comprehensive liability and compensation system on marine environment should be maintained at the federal level to provide vulnerable states with a means of environmental restoration in the event of a shipping accident, or as a result of invasive species.

It should be the policy of the United States to require that domestic oil producers and common carriers develop the capability to safely transport crude oil and other liquefied petroleum products and to quickly and effectively contain and clean up oil spills that occur.