PocketLaw | USC 49 | Discretionary fund

Discretionary fund

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§47115. Discretionary fund

(a) Existence and Amounts in Fund.-The Secretary of Transportation has a discretionary fund. The fund consists of-

(1) amounts subject to apportionment for a fiscal year that are not apportioned under section 47114(c)–(e) of this title; and

(2) 12.5 percent of amounts not apportioned under section 47114 of this title because of section 47114(f).

(b) Availability of Amounts.-Subject to subsection (c) of this section and section 47117(e) of this title, the fund is available for making grants for any purpose for which amounts are made available under section 48103 of this title that the Secretary considers most appropriate to carry out this subchapter.

(c) Minimum Percentage for Primary and Reliever Airports.-At least 75 percent of the amount in the fund and distributed by the Secretary in a fiscal year shall be used for making grants-

(1) to preserve and enhance capacity, safety, and security at primary and reliever airports; and

(2) to carry out airport noise compatibility planning and programs at primary and reliever airports.

(d) Considerations.-

(1) For capacity enhancement projects.-In selecting a project for a grant to preserve and improve capacity funded in whole or in part from the fund, the Secretary shall consider-

(A) the effect that the project will have on overall national transportation system capacity;

(B) the benefit and cost of the project, including, in the case of a project at a reliever airport, the number of operations projected to be diverted from a primary airport to the reliever airport as a result of the project, as well as the cost savings projected to be realized by users of the local airport system;

(D) the airport improvement priorities of the States to the extent such priorities are not in conflict with subparagraphs (A) and (B);

(E) the projected growth in the number of passengers or aircraft that will be using the airport at which the project will be carried out; and

(F) the ability of the project to foster United States competitiveness in securing global air cargo activity at a United States airport.

(2) For all projects.-In selecting a project for a grant under this section, the Secretary shall consider among other factors whether-

(A) funding has been provided for all other projects qualifying for funding during the fiscal year under this chapter that have attained a higher score under the numerical priority system employed by the Secretary in administering the fund; and

(B) the sponsor will be able to commence the work identified in the project application in the fiscal year in which the grant is made or within 6 months after the grant is made, whichever is later.

(e) Waiving Percentage Requirement.-If the Secretary decides the Secretary cannot comply with the percentage requirement of subsection (c) of this section in a fiscal year because there are insufficient qualified grant applications to meet that percentage, the amount the Secretary determines will not be distributed as required by subsection (c) is available for obligation during the fiscal year without regard to the requirement.

(f) Consideration of Diversion of Revenues in Awarding Discretionary Grants.-

(1) General rule.-Subject to paragraph (2), in deciding whether or not to distribute funds to an airport from the discretionary funds established by subsection (a) of this section and section 47116 of this title, the Secretary shall consider as a factor militating against the distribution of such funds to the airport the fact that the airport is using revenues generated by the airport or by local taxes on aviation fuel for purposes other than capital or operating costs of the airport or the local airports system or other local facilities which are owned or operated by the owner or operator of the airport and directly and substantially related to the actual air transportation of passengers or property.

(2) Required finding.-Paragraph (1) shall apply only when the Secretary finds that the amount of revenues used by the airport for purposes other than capital or operating costs in the airport's fiscal year preceding the date of the application for discretionary funds exceeds the amount of such revenues in the airport's first fiscal year ending after August 23, 1994, adjusted by the Secretary for changes in the Consumer Price Index of All Urban Consumers published by the Bureau of Labor Statistics of the Department of Labor.

(g) Minimum Amount To Be Credited.-

(1) General rule.-In a fiscal year, there shall be credited to the fund, out of amounts made available under section 48103 of this title, an amount that is at least equal to the sum of-

(A) $148,000,000; plus

(B) the total amount required from the fund to carry out in the fiscal year letters of intent issued before January 1, 1996, under section 47110(e) of this title or the Airport and Airway Improvement Act of 1982.

The amount credited is exclusive of amounts that have been apportioned in a prior fiscal year under section 47114 of this title and that remain available for obligation.

(2) Reduction of apportionments.-In a fiscal year in which the amount credited under subsection (a) is less than the minimum amount to be credited under paragraph (1), the total amount calculated under paragraph (3) shall be reduced by an amount that, when credited to the fund, together with the amount credited under subsection (a), equals such minimum amount.

(3) Amount of reduction.-For a fiscal year, the total amount available to make a reduction to carry out paragraph (2) is the total of the amounts determined under sections 47114(c)(1)(A), 47114(c)(2), 47114(d), and 47117(e) of this title. Each amount shall be reduced by an equal percentage to achieve the reduction.

(h) Priority for Letters of Intent.-In making grants in a fiscal year with funds made available under this section, the Secretary shall fulfill intentions to obligate under section 47110(e).

(i) Marshall Islands, Micronesia, and Palau.-For fiscal years 2018 through 2023, the sponsors of airports located in the Republic of the Marshall Islands, Federated States of Micronesia, and Republic of Palau shall be eligible for grants under this section and section 47116.

(j) Supplemental Discretionary Funds.-

(1) In general.-The Secretary shall establish a program to provide grants, subject to the conditions of this subsection, for any purpose for which amounts are made available under section 48103 that the Secretary considers most appropriate to carry out this subchapter.

(2) Treatment of grants.-

(A) In general.-A grant made under this subsection shall be treated as having been made pursuant to the Secretary's authority under section 47104(a) and from the Secretary's discretionary fund under subsection (a) of this section.

(B) Exception.-Except as otherwise provided in this subsection, grants made under this subsection shall not be subject to subsection (c), section 47117(e), or any other apportionment formula, special apportionment category, or minimum percentage set forth in this chapter.

(3) Eligibility and prioritization.-

(A) Eligibility.-The Secretary may provide grants under this subsection for an airport or terminal development project at any airport that is eligible to receive a grant from the discretionary fund under subsection (a) of this section.

(B) Prioritization.-Not less than 50 percent of the amounts available under this subsection shall ¹ used to provide grants at-

(i) airports that are eligible for apportionment under section 47114(d)(3); and

(ii) nonhub and small hub airports.

(4) Authorization.-

(A) In general.-There is authorized to be appropriated to the Secretary to carry out this subsection the following amounts:

(i) $1,020,000,000 for fiscal year 2019.

(ii) $1,041,000,000 for fiscal year 2020.

(iii) $1,064,000,000 for fiscal year 2021.

(iv) $1,087,000,000 for fiscal year 2022.

(v) $1,110,000,000 for fiscal year 2023.

(B) Availability.-Sums authorized to be appropriated under subparagraph (A) shall remain available for 2 fiscal years.

(k) Partnership Program Airports.-

(1) Authority.-The Secretary may make grants with funds made available under this section for an airport participating in the program under section 47134 if-

(A) the Secretary has approved the application of an airport sponsor under section 47134(b) in fiscal year 2019; and

(B) the grant will-

(i) satisfy an obligation incurred by an airport sponsor under section 47110(e) or funded by a nonpublic sponsor for an airport development project on the airport; or

(ii) provide partial Federal reimbursement for airport development (as defined in section 47102) on the airport layout plan initiated in the fiscal year in which the application was approved, or later, for over a period of not more than 10 years.

(2) Nonapplicability of certain sections.-Grants made under this subsection shall not be subject to-

(A) subsection (c) of this section;

(B) section 47117(e); or

( Pub. L. 103–272, §1(e), July 5, 1994, 108 Stat. 1270 ; Pub. L. 103–305, title I, §112(d), Aug. 23, 1994, 108 Stat. 1576 ; Pub. L. 103–429, §6(67), Oct. 31, 1994, 108 Stat. 4386 ; Pub. L. 104–264, title I, §§122, 145, Oct. 9, 1996, 110 Stat. 3218 , 3222; Pub. L. 104–287, §5(81), Oct. 11, 1996, 110 Stat. 3397 ; Pub. L. 106–6, §§5, 8(a), Mar. 31, 1999, 113 Stat. 10 , 11; Pub. L. 107–71, title I, §119(a)(3), Nov. 19, 2001, 115 Stat. 628 ; Pub. L. 108–176, title I, §§148, 188, Dec. 12, 2003, 117 Stat. 2504 , 2519; Pub. L. 110–253, §3(c)(5), June 30, 2008, 122 Stat. 2418 ; Pub. L. 110–330, §5(f), Sept. 30, 2008, 122 Stat. 3718 ; Pub. L. 111–12, §5(e), Mar. 30, 2009, 123 Stat. 1458 ; Pub. L. 111–69, §5(f), Oct. 1, 2009, 123 Stat. 2055 ; Pub. L. 111–116, §5(e), Dec. 16, 2009, 123 Stat. 3032 ; Pub. L. 111–153, §5(e), Mar. 31, 2010, 124 Stat. 1085 ; Pub. L. 111–161, §5(e), Apr. 30, 2010, 124 Stat. 1127 ; Pub. L. 111–197, §5(e), July 2, 2010, 124 Stat. 1354 ; Pub. L. 111–216, title I, §104(e), Aug. 1, 2010, 124 Stat. 2349 ; Pub. L. 111–249, §5(f), Sept. 30, 2010, 124 Stat. 2628 ; Pub. L. 111–329, §5(e), Dec. 22, 2010, 124 Stat. 3567 ; Pub. L. 112–7, §5(e), Mar. 31, 2011, 125 Stat. 32 ; Pub. L. 112–16, §5(e), May 31, 2011, 125 Stat. 219 ; Pub. L. 112–21, §5(e), June 29, 2011, 125 Stat. 234 ; Pub. L. 112–27, §5(e), Aug. 5, 2011, 125 Stat. 271 ; Pub. L. 112–30, title II, §205(f), Sept. 16, 2011, 125 Stat. 358 ; Pub. L. 112–91, §5(f), Jan. 31, 2012, 126 Stat. 4 ; Pub. L. 112–95, title I, §144, Feb. 14, 2012, 126 Stat. 29 ; Pub. L. 114–55, title I, §102(b), Sept. 30, 2015, 129 Stat. 523 ; Pub. L. 114–141, title I, §102(b), Mar. 30, 2016, 130 Stat. 323 ; Pub. L. 114–190, title I, §1102(b), July 15, 2016, 130 Stat. 617 ; Pub. L. 115–63, title I, §102(c), Sept. 29, 2017, 131 Stat. 1169 ; Pub. L. 115–141, div. M, title I, §102(b), Mar. 23, 2018, 132 Stat. 1046 ; Pub. L. 115–254, div. B, title I, §§117(a), 158, 184(a), Oct. 5, 2018, 132 Stat. 3201 , 3219, 3234.)

Historical and Revision Notes
Pub. L. 103–272
Revised Section	Source (U.S. Code)	Source (Statutes at Large)
47115(a)	49 App.:2206(c)(1) (1st, 2d sentences).	Sept. 3, 1982, Pub. L. 97–248, §507(c), 96 Stat. 679 ; Jan. 6, 1983, Pub. L. 97–424, §426(a), (d), 96 Stat. 2167 , 2168; restated Dec. 30, 1987, Pub. L. 100–223, §106(a), 101 Stat. 1496 ; Nov. 5, 1990, Pub. L. 101–508, §9112(a), 104 Stat. 1388–362 .
47115(b)	49 App.:2206(c)(1) (3d, last sentences).
47115(c)	49 App.:2206(c)(2).
47115(d)	49 App.:2206(c)(3).
47115(e)	49 App.:2206(c)(4).

In subsection (a), before clause (1), the words "The Secretary of Transportation has a discretionary fund" are added for clarity. In clause (1), the words "subject to apportionment for a fiscal year" are substituted for "which are made available for a fiscal year under section 2204 of this Appendix" and "which have not been previously apportioned by the Secretary" for consistency with section 47114 of the revised title.

In subsection (c), before clause (1), the words "Subject to section 2207(d) of this Appendix and paragraph (4) of this subsection" and "pursuant to paragraph (1) and distributed by the Secretary under this subsection in a fiscal year beginning after September 30, 1987" are omitted as surplus.

In subsection (d), before clause (1), the words "at airports" are omitted as surplus. In clause (3), the words "airport operator or other" are omitted as surplus.

In subsection (e), the words "submitted in compliance with this chapter" and "portion of" are omitted as surplus.

Pub. L. 103–429
Revised Section	Source (U.S. Code)	Source (Statutes at Large)
47115(f)	49 App.:2206(c)(5).	Sept. 3, 1982, Pub. L. 97–248, §507(c)(5), as added May 26, 1994, Pub. L. 103–260, §104(a), 108 Stat. 698 .
	49 App.:2206 (note).	May 26, 1994, Pub. L. 103–260, §104(b), 108 Stat. 699 .

In subsection (f), the text of section 104(b) of the Airport Improvement Program Temporary Extension Act of 1994 (Public Law 103–260, 108 Stat. 699) is omitted as executed.

Pub. L. 104–287, §5(81)(A)

This sets out the date of enactment of 49:47115(f), as enacted by section 112(d) of the Federal Aviation Administration Authorization Act of 1994 (Public Law 103–305, 108 Stat. 1576).

Pub. L. 104–287, §5(81)(B)

This redesignates 49:47115(f), as enacted by section 6(67) of the Act of October 31, 1994 (Public Law 103–429, 108 Stat. 4386), as 49:47115(g).

References in Text

The Airport and Airway Improvement Act of 1982, referred to in subsec. (g)(1)(B), is title V of Pub. L. 97–248, Sept. 3, 1982, 96 Stat. 671 , which was classified principally to chapter 31 (§2201 et seq.) of former Title 49, Transportation, and was substantially repealed by Pub. L. 103–272, §7(b), July 5, 1994, 108 Stat. 1379 , and reenacted by the first section thereof as this subchapter.

Amendments

2018-Subsec. (i). Pub. L. 115–254, §117(a)(3), substituted "fiscal years 2018 through 2023" for "fiscal years 2012 through 2018".

Pub. L. 115–254, §117(a)(1), (2), redesignated subsec. (j) as (i) and struck out former subsec. (i). Prior to amendment, text of subsec. (i) read as follows: "In order to assure that funding under this subchapter is provided to the greatest needs, the Secretary, in selecting a project described in section 47102(3)(J) for a grant, shall consider the non-federal resources available to sponsor, the use of such non-federal resources, and the degree to which the sponsor is providing increased funding for the project."

Subsec. (j). Pub. L. 115–254, §158, added subsec. (j).

Pub. L. 115–254, §117(a)(2), redesignated subsec. (j) as (i).

Pub. L. 115–141 substituted "2018" for "2017 and for the period beginning on October 1, 2017, and ending on March 31, 2018".

Subsec. (k). Pub. L. 115–254, §184(a), added subsec. (k).

2017-Subsec. (j). Pub. L. 115–63 inserted "and for the period beginning on October 1, 2017, and ending on March 31, 2018" after "fiscal years 2012 through 2017".

2016-Subsec. (j). Pub. L. 114–190 substituted "fiscal years 2012 through 2017," for "fiscal years 2012 through 2015 and for the period beginning on October 1, 2015, and ending on July 15, 2016,".

Pub. L. 114–141 substituted "July 15, 2016" for "March 31, 2016".

2015-Subsec. (j). Pub. L. 114–55 inserted "and for the period beginning on October 1, 2015, and ending on March 31, 2016" after "fiscal years 2012 through 2015".

2012-Subsec. (j). Pub. L. 112–95 substituted "For fiscal years 2012 through 2015," for "For fiscal years 2004 through 2011, and for the portion of fiscal year 2012 ending before February 18, 2012,".

Pub. L. 112–91 substituted "February 18, 2012," for "February 1, 2012,".

2011-Subsec. (j). Pub. L. 112–30 substituted "fiscal years 2004 through 2011, and for the portion of fiscal year 2012 ending before February 1, 2012," for "fiscal years 2004 through 2010, and for the portion of fiscal year 2011 ending before September 17, 2011,".

Pub. L. 112–27 substituted "September 17, 2011," for "July 23, 2011,".

Pub. L. 112–21 substituted "July 23, 2011," for "July 1, 2011,".

Pub. L. 112–16 substituted "July 1, 2011," for "June 1, 2011,".

Pub. L. 112–7 substituted "June 1, 2011," for "April 1, 2011,".

2010-Subsec. (j). Pub. L. 111–329 substituted "April 1, 2011," for "January 1, 2011,".

Pub. L. 111–249 inserted "and for the portion of fiscal year 2011 ending before January 1, 2011," after "2010,".

Pub. L. 111–216 substituted "fiscal years 2004 through 2010," for "fiscal years 2004 through 2009, and for the portion of fiscal year 2010 ending before August 2, 2010,".

Pub. L. 111–197 substituted "August 2, 2010," for "July 4, 2010,".

Pub. L. 111–161 substituted "July 4, 2010," for "May 1, 2010,".

Pub. L. 111–153 substituted "May 1, 2010," for "April 1, 2010,".

2009-Subsec. (j). Pub. L. 111–116 substituted "April 1, 2010," for "January 1, 2010,".

Pub. L. 111–69 inserted "and for the portion of fiscal year 2010 ending before January 1, 2010," after "2009,".

Pub. L. 111–12 substituted "2009," for "2008, and for the portion of fiscal year 2009 ending before April 1, 2009,".

2008-Subsec. (j). Pub. L. 110–330 inserted "and for the portion of fiscal year 2009 ending before April 1, 2009," after "2008,".

Pub. L. 110–253 substituted "fiscal years 2004 through 2008," for "fiscal years 2004 through 2007,".

2003-Subsec. (d). Pub. L. 108–176, §148, amended subsec. (d) generally. Prior to amendment, subsec. (d) listed six things the Secretary was required to consider in selecting a project for a grant to preserve and enhance capacity as described in subsection (c)(1) of this section.

Subsec. (j). Pub. L. 108–176, §188, added subsec. (j).

2001-Subsec. (i). Pub. L. 107–71 added subsec. (i).

1999-Subsec. (a)(2). Pub. L. 106–6, §8(a)(1), substituted "12.5" for "25".

Subsec. (b). Pub. L. 106–6, §8(a)(2), struck out at end "However, 50 percent of amounts not apportioned under section 47114 of this title because of section 47114(f) and added to the fund is available for making grants for projects at small hub airports (as defined in section 41731 of this title)."

Subsec. (g)(4). Pub. L. 106–6, §5, which directed the amendment of section 47115(g) by striking paragraph (4), without specifying the Code title to be amended, was executed by striking heading and text of par. (4) of subsec. (g) of this section, to reflect the probable intent of Congress. Text read as follows: "For a fiscal year in which the amount credited to the fund under this subsection exceeds $300,000,000, the Secretary shall allocate the amount of such excess as follows:

"(A) 1/3 shall be made available to airports for which apportionments are made under section 47114(d) of this title.

"(B) 1/3 shall be made available for airport noise compatibility planning under section 47505(a)(2) of this title and for carrying out noise compatibility programs under section 47504(c)(1) of this title.

"(C) 1/3 shall be made available to current or former military airports for which grants may be made under section 47117(e)(1)(B) of this title."

1996-Subsec. (d)(2). Pub. L. 104–264, §145(a)(1), substituted ", including, in the case of a project at a reliever airport, the number of operations projected to be diverted from a primary airport to the reliever airport as a result of the project, as well as the cost savings projected to be realized by users of the local airport system;" for "; and".

Subsec. (d)(4) to (6). Pub. L. 104–264, §145(a)(2), (3), added pars. (4) to (6).

Subsec. (f). Pub. L. 104–287, §5(81)(B), which directed that subsec. (f), as enacted by Pub. L. 103–429, be redesignated (g), could not be executed because of amendment by Pub. L. 104–264, §122, which struck out that subsec. See below.

Pub. L. 104–264, §122, struck out subsec. (f), relating to minimum amount to be credited, which read as follows:

"(f) Minimum Amount To Be Credited.-(1) In a fiscal year, at least $325,000,000 of the amount made available under section 48103 of this title shall be credited to the fund. The amount credited is exclusive of amounts that have been apportioned in a prior fiscal year under section 47114 of this title and that remain available for obligation.

"(2) In a fiscal year in which the amount credited under subsection (a) of this section is less than $325,000,000, the total amount calculated under paragraph (3) of this subsection shall be reduced by an amount that, when credited to the fund, together with the amount credited under subsection (a), equals $325,000,000.

"(3) For a fiscal year, the total amount available to reduce to carry out paragraph (2) of this subsection is the total of the amounts determined under sections 47114(c)(1)(A) and (2) and (d) and 47117(e) of this title. Each amount shall be reduced by an equal percentage to achieve the reduction."

Subsec. (f)(2). Pub. L. 104–287, §5(81)(A), substituted "August 23, 1994" for "the date of the enactment of this subsection".

Subsec. (g). Pub. L. 104–264, §122, added subsec. (g).

Subsec. (h). Pub. L. 104–264, §145(b), added subsec. (h).

1994-Subsec. (f). Pub. L. 103–429 added subsec. (f) relating to minimum amount to be credited.

Pub. L. 103–305 added subsec. (f) relating to consideration of diversion of revenues in awarding discretionary grants.

Effective Date of 2011 Amendment

Amendment by Pub. L. 112–27 effective July 23, 2011, see section 5(j) of Pub. L. 112–27, set out as a note under section 40117 of this title.

Amendment by Pub. L. 112–21 effective July 1, 2011, see section 5(j) of Pub. L. 112–21, set out as a note under section 40117 of this title.

Amendment by Pub. L. 112–16 effective June 1, 2011, see section 5(j) of Pub. L. 112–16, set out as a note under section 40117 of this title.

Amendment by Pub. L. 112–7 effective Apr. 1, 2011, see section 5(j) of Pub. L. 112–7, set out as a note under section 40117 of this title.

Effective Date of 2010 Amendment

Amendment by Pub. L. 111–329 effective Jan. 1, 2011, see section 5(j) of Pub. L. 111–329, set out as a note under section 40117 of this title.

Amendment by Pub. L. 111–249 effective Oct. 1, 2010, see section 5(l) of Pub. L. 111–249, set out as a note under section 40117 of this title.

Amendment by Pub. L. 111–216 effective Aug. 2, 2010, see section 104(j) of Pub. L. 111–216, set out as a note under section 40117 of this title.

Amendment by Pub. L. 111–197 effective July 4, 2010, see section 5(j) of Pub. L. 111–197, set out as a note under section 40117 of this title.

Amendment by Pub. L. 111–161 effective May 1, 2010, see section 5(j) of Pub. L. 111–161, set out as a note under section 40117 of this title.

Amendment by Pub. L. 111–153 effective Apr. 1, 2010, see section 5(j) of Pub. L. 111–153, set out as a note under section 40117 of this title.

Effective Date of 2009 Amendment

Amendment by Pub. L. 111–116 effective Jan. 1, 2010, see section 5(j) of Pub. L. 111–116, set out as a note under section 40117 of this title.

Amendment by Pub. L. 111–12 effective Apr. 1, 2009, see section 5(j) of Pub. L. 111–12, set out as a note under section 40117 of this title.

Effective Date of 2008 Amendment

Amendment by Pub. L. 110–330 effective Oct. 1, 2008, see section 5(l) of Pub. L. 110–330, set out as a note under section 40117 of this title.

Amendment by Pub. L. 110–253 effective July 1, 2008, see section 3(d) of Pub. L. 110–253, set out as a note under section 9502 of Title 26, Internal Revenue Code.

Effective Date of 2003 Amendment

Amendment by Pub. L. 108–176 applicable only to fiscal years beginning after Sept. 30, 2003, except as otherwise specifically provided, see section 3 of Pub. L. 108–176, set out as a note under section 106 of this title.

Effective Date of 1996 Amendments

Amendment by section 5(81)(B) of Pub. L. 104–287 effective Sept. 30, 1998, see section 8(2) of Pub. L. 104–287, set out as a note under section 47117 of this title.

Except as otherwise specifically provided, amendment by Pub. L. 104–264 applicable only to fiscal years beginning after Sept. 30, 1996, and not to be construed as affecting funds made available for a fiscal year ending before Oct. 1, 1996, see section 3 of Pub. L. 104–264, set out as a note under section 106 of this title.

¹ So in original. The word "be" probably should appear.

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